Allowed

M.C.,Dehli Public v. Suranjita Devi

Orissa HC25 Feb 2021WP(C)/8938/2010

Case brief

AI extract

What is this about?

School management challenged the appellate order setting aside the termination of a Yoga/PET teacher. The court held the Director had jurisdiction over the appeal but found the teacher had voluntarily abandoned service and had suppressed material facts by filing successive appeals and a writ petition. The unreasoned appellate order was quashed and the writ petition allowed.

What did the court decide?

Writ petition allowed; the order of the Director, Secondary Education, Orissa dated 16.04.2010 (Annexure-9), communicated on 21.04.2010, quashed. No order as to costs.

M.C.,Dehli Public Vs Suranjita Devi — Education and Admissions | Orissa HC (2021)

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ORISSA HIGH COURT: CUTTACK

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W.P.(C) NO. 8938 OF 2010

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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AFR

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Managing Committee, Delhi Public School, Damanjodi, Koraput ……… Petitioner -versus- Suranjita Devi & others ……… Opp.Parties For petitioner : M/s. (Mrs.) Pami Rath, and J. Mohanty, Advocates. For opp.parties : Mr. B.S. Tripathy, M.K. Rath and J. Pati, Advocates [O.P. No.1] Mr. B. Prusty, Standing Counsel (S&ME) [O.P. No.2)

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P R E S E N T :

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THE HONOURABLE DR. JUSTICE B.R.SARANGI

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Date of Hearing: 18.02.2021 :: Date of Judgment: 25.02.2021

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DR. B.R.SARANGI, J. The Managing Committee of Delhi Public

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School, Damanjodi, Koraput, represented through its

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Principal-cum- Secretary, has filed this writ petition seeking to quash the judgment dated 16.04.2010 passed by the Director, Secondary Education Orissa in Appeal No. 9 of 2008, which was communicated to the opposite party no.1 vide memo dated 21.04.2010 in Annexure-9, whereby termination of opposite party no.1 has been held to be not valid and direction has been issued to the petitioner to take opposite party no.1 back into service, while granting liberty to the petitioner to proceed against opposite party no.1 as per rules.

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The factual matrix of the case, in hand, is that the Delhi Public School is a private institution, registered under the Societies Registration Act, 1860 and imparting education to the students having been established in different parts of the Country.

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2.1 The petitioner appointed opposite party no.1 as Yoga/PET teacher pursuant to order dated 30.06.2001. Accordingly, she joined in the School on the very same day.

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The appointment of opposite party no.1 was subject to condition that her service can be terminated at any time by the

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School without any prior notice. Under the terms and conditions governing the appointment, it was clearly stipulated that opposite party no.1 can be terminated from service by notice of three months or notice pay in lieu thereof. Further, after completion of probation period, the service of opposite party no.1 was confirmed, but she resorted to gross indiscipline and insubordination and did not care to follow the rules and regulations of the School. More particularly, she avoided invigilation duty, refused to remain present for preparation of Annual Sports Day, remained unauthorizedly absent from 26.06.2004 and failed to submit any reply to show cause notice dated 16.09.2005 and left the station unauthorisedly on 19.09.2005. She did not respond to telegrams and letters issued, she refused to escort NCC cadets to Puri vide letter dated 21.10.2003 and also to occupy the allotted quarters in her favour, etc. In spite of repeated notice being given to her to attend the school, she did not turn up. Consequentially, her service was terminated in the interest of the institution vide order dated 16.11.2005.

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2.2 On 12.12.2002, opposite party no.1 intimated

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the School that she had filed an appeal before the Director of Secondary Education, Orissa, Bhubaneswar against such termination of service, though such letter had never been communicated to the petitioner and more so the appeal so alleged to have been filed in 2005 had never been transmitted to the petitioner from the Directorate and the copy of the appeal memo transmitted did not indicate any number of the appeal. The opposite party no.1 in 2007 again handed over the copy of the appeal memo, which was said to have been filed before the Regional Joint Director, Secondary Education, Orissa, Berhampur, in the School by hand, which also did not contain the appeal number. But from the office of Regional Joint Director, Berhampur, intimation was received by the petitioner on 21.10.2008, which showed that the Appeal Case No. 99 of 2007, which was filed by opposite party no.1, was pending.

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2.3 When the matter was stood thus, the opposite party no.1 filed W.P.(C) No. 5710 of 2006, but the same was

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never taken up till 25.02.2008. However, the said writ petition was disposed of vide order dated 25.02.2008 permitting the opposite party no.1 to withdraw the writ petition to enable her to file appeal before the Director, Secondary Education within a period of two weeks with the direction that if such appeal is filed within the time specified, the same shall be considered in its own merit without being turn down on the ground of limitation and such appeal be disposed of within a period of two months from the date of its filing. In the said writ petition, no communication was made to the petitioner and the order dated 25.02.2008 was passed suppressing the fact that the opposite party no.1 had preferred appeal to the Director, Secondary Education, Bhubaneswar in 2005 and also preferred appeal before the Regional Joint Director, Secondary Education, Berhampur in the year 2007, which amounts to playing fraud on the authorities as well as the Court.

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2.4 In the meantime, the opposite party no.1 during continuance of her employment in the school, without informing the authority, took admission in the Government

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College of Physical Education, Bhubaneswar and prosecuted her studies during 2005-06 and 2006-07 and passed the examination from Utkal University with roll no. 1534UT 05008 as a regular student, for which she did not attend the school and her duties and remained unauthorized absent and, thereby, there was dereliction in duty, apart from other irregularities. After the order was passed on 25.02.2008 in W.P.(C) No. 5710 of 2006, the opposite party no.1 filed an appeal before the Director, Secondary Education, Orissa, which was registered as Appeal No. 9 of 2008, wherein the opposite party no.1 had also not disclosed the earlier appeals which were preferred before the Director in the year 2005 and Regional Joint Director in the year 2007 and the opposite party no.1 did not press the appeal before the Regional Joint Director which she had already filed and allowed the same to be dismissed for default.

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2.5 In Appeal No.9 of 2008 on being noticed, the petitioner appeared and brought to the notice of the Director with regard to different aspects including the above mentioned

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facts and raised an objection that he has no jurisdiction to entertain such appeal, but the Director without considering the issues relating to the suppression of material facts and conduct of the opposite party no.1 in resorting to playing fraud on the Court as well as the authorities in proper perspective, and without deciding the question of jurisdiction of the Director in entertaining the appeal, passed the order impugned in Annexure-9 dated 16.04.2010 holding that the termination of the opposite party no.1 is not valid and thereby directed the petitioner to take back her into service, but granted liberty to the petitioner to proceed against opposite party no.1 as per rules. Hence this application.

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Mrs. P. Rath, learned counsel appearing for the petitioner contended that opposite party no.1, having abandoned the service voluntarily, is not entitled to get any relief and non-consideration of the same by the Director, Secondary Education, Orissa in his impugned order dated 16.04.2010 cannot sustain in the eye of law. It is further contended that fraud has been played on the petitioner, State

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authorities as well as this Court in suppressing the material facts. Thereby, the order so passed by the Director, Secondary Education, Orissa cannot sustain being vitiated which goes to the very root of the matter. Apart from the same, it is further contended that opposite party no.1 has not acted as a disciplined employee of the institution, rather her conduct which is apparent on the face of the record would go to show that she has not carried out the direction of the authorities. Thereby, the entire conduct of opposite party no.1 suffers from insubordination and there is dereliction in duty for remaining absent from the institution without prior permission and, more so, she prosecuted her studies as a regular candidate without getting prior permission of the authority, namely, the petitioner herein. Thereby, equity cannot stand in her favour so as to get relief as directed by the Director. More particularly, when this fact was placed before the Director, Secondary Education, Orissa, he did not take note of the same and passed the order impugned in Annexure-9 dated 16.04.2010 directing the petitioner to take back opposite party no.1 into service, while granting liberty to the petitioner to

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proceed against opposite party no.1 as per rules, holding further that the termination of opposite party no.1 from service was not valid, that itself is an outcome of non-application of mind. Therefore, the petitioner seeks quashing of the same.

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It is further contended that if there is voluntarily abandonment from service, in that case there is no requirement of compliance of principle of natural justice. More so, the order impugned has not been passed with reasons. Specifically, by filing a false affidavit if the relief has been claimed, that cannot sustain in the eye of law. As such, the pleadings of the petitioner have not been denied in the counter affidavit. Thereby, the facts having been admitted, the order so passed in Annexure-9 dated 16.04.2010, which has been communicated on 21.04.2010, cannot sustain in the eye of law and is liable to be set aside.

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In support of her contentions, learned counsel

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for the petitioner has relied upon Vijay S. Sathaye v. Indian Airlines Limited , (2013) 10 SCC 253; B.A. Linga Reddy v. Karnataka State Transport Authority , (2015) 4 SCC 515;

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M/s. Essel Mining & Industries Ltd. v. State of Odisha , AIR 2017 Orissa 74; K.D. Sharma v. Steel Authority of India Limited , (2008) 12 SCC 481 and Bharat Singh v. State of Haryana , AIR 1988 SC 2181.

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Mr. B. Prusty, learned Standing Counsel for School and Mass Education Department contended that the Director, Secondary Education, Orissa has jurisdiction to hear the appeal filed by opposite party no.1 against the order of her termination issued by the Managing Committee, in view of Clause-2(iii) of Resolution No.30720-VIISME-M-17/96-SME dated 23.09.1996 issued by Government of Orissa, Department of School and Mass Education. At the time of giving appointment to opposite party no.1, condition was imposed that the service of the appointee may be terminated at any point of time without any prior notice. But, at the time of termination, due procedure must have been followed and as the same was not followed, the termination of opposite party no.1 is illegal. Thereby in appeal, the Director, Secondary Education, Orissa passed the order impugned dated

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16.04.2010, which is well justified and does not call for any interference by this Court.

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Mr. B.S. Tripathy, learned counsel appearing

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for opposite party no.1, referring to impugned judgment and order dated 16.04.2010, communicated on 21.04.2010 under Annexure-9, contended that the grounds which are urged before this Court that non-consideration of material facts is absolutely bereft of merits and he has referred to paragraphs-3 and 4 of the order impugned, which speaks about the fact that the petitioner in its note of comments dated 31.07.2009 brought various act of misconduct against opposite party no.1 like avoiding of the duty of invigilation, refusal to remain present for annual sports day, remaining un-authorised absent from the school from 26.06.2004, failure to submit show cause replies to the notice dated 16.09.2005 and leaving the headquarters from 19.09.2005, refusal to escort NCC cadets to Puri on 21.10.2003 and further the Principal stated

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that opposite party no.1 suppressed the fact of dismissal of Appeal No.99 of 2007 in the forum of the Regional Joint

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Director, Berhampur and further it has been stated that opposite party no.1 had been admitted for M.P.Ed. course on 15.09.2005 and prosecuted her study in Government College of Physical Education, Bhubaneswar as regular student during 2005-06 and 2006-07 and passed the examination in 1^st division with Utkal University Roll No.15304 UT 05008, as reported by the Principal of Government College & Physical Education, Bhubaneswar vide letter No.489 dated 07.05.2009. Thereby, it is contended that these facts have been taken into consideration by the Director, Secondary Education, Orissa while passing the order impugned dated 16.04.2010 in Annexure-9. Therefore, no illegality or irregularity has been committed by the Director, Secondary Education, Odisha directing the petitioner to take back opposite party no.1 into service. Furthermore, it is contended that the petitioner has imposed major penalty of terminating the services of opposite party no.1 without drawal of major penalty proceedings in order to give opportunity to the opposite party no.1 to defend the misconducts reported by the School authorities, thereby the order passed by the Director, Secondary Education, Orissa

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is justified and, therefore, this Court should not interfere with the same.

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This Court heard Mrs. P. Rath, learned counsel appearing for the petitioner, Mr. B. Prusty, learned Standing Counsel for School and Mass Education Department and Mr. B.S. Tripathy, learned counsel for opposite party no.1 by virtual/physical mode. Pleadings have been exchanged between the parties and with their consent the matter is being disposed of finally at the stage of admission.

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In view of the facts narrated above and the arguments advanced by the learned counsel appearing on behalf of respective parties, the following three issues emerge for consideration:-

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(1) Whether the Director, Secondary Education, Orissa has got jurisdiction to entertain the appeal preferred by opposite party no.1;

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(2) Whether there was abandonment of service by

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the opposite party no.1 and in such event whether any procedure is required to be

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followed by the petitioner for her termination; and

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(3) Whether any fraud has been played on both the State authorities as well as this Court by opposite party no.1.

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Issue No.(1)

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Delhi Public School is a private educational institution imparting teaching in English medium in the State. For establishment of such institution and to regulate the service condition of employees working thereunder,

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Government of Odisha, Department of School and Mass Education passed resolution dated 23.09.1996 which has taken into consideration the observation made by this Court in OJC No. 2951 of 1993 that sub-section (5) of Section 6 of Orissa Education Act provides that while according recognition to a private educational institution, the prescribed authority shall have regard to matters like provision for suitable and adequate accommodation, location of the institution, its sanitary and healthy surroundings, appointment of qualified

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teachers, provision for equipments and teaching materials and adequate financial support for the continuous and efficient maintenance of the institution. It has thus become imperative to prescribe certain guidelines to be followed before according N.O.C./Recognition to such institution and to withdraw such N.O.C/Recognition in the event of violation of any of the instructions issued in the resolution. Any

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organization/Individual seeking “No Objection Certificates” from the State Government to open any unaided school to be affiliated to the ICSE/CBSE shall be required to fulfill the terms and conditions and satisfy the requirements prescribed in the resolution.

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8.1 Clause-2 of the resolution dated 23.09.1996, which deals with Recruitment and Service Conditions of the staff, being relevant is extracted hereunder:

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“(i) Each school either affiliated or to be affiliated with the CBSE/ICSE shall frame Rules governing he recruitment and conditions of service of its employees in conformity with the Rules prescribed under the Orissa Education Act, 1969

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(ii) Service contract will be entered with each employee and the management of the School.

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(iii) The appointing authority shall be competent to initiate any disciplinary action against any of the employees of the institution after following fair procedure. Appeal against such orders shall, however, lie with the Director, Elementary Education for the institution imparting Education up to Standard VII and with the Director, Secondary Education for the institution imparting Education from Standard VIII and above. Where the institution imparts education from Standard I to X or XII, the Director, Secondary Education shall be the Appellate authority. The Government will be competent to review the orders passed by the appointing authority/disciplinary authority and the appellate authorities. The qualifications of Head of the institution and other teaching staff shall be the same as prescribed by the CBSE/ICSE.”

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Sub-Clause (iii) of Clause-2, as mentioned above, reveals that the appointing authority is competent to initiate any disciplinary action against any of the employees of the institution after following fair procedure. Appeal against such orders shall, however, lie with the Director, Elementary Education for the institution imparting Education up to Standard VII and with the Director, Secondary Education for the institution imparting Education from Standard VIII and above. Thereby, the Director Secondary Education, Orissa has got competency to decide the appeal preferred by any of the staff of the institution, if any action is taken by the appointing authority. In view of clear expression made in the provisions

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contained in Clause-2(iii) of the Resolution dated 23.09.1996 annexed as Annexure-A/2 to the counter affidavit filed by opposite party no.2, there is no iota of doubt that the Director, Secondary Education, Orissa has jurisdiction to entertain the appeal rather it is made clear that the Director is competent to entertain the appeal against the orders passed by the disciplinary authority and decide the same in accordance with law. Therefore, the issue no.(1) is answered in affirmative and against the petitioner.

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9. ISSUE NO.(2)

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Opposite party no.1 while working as Yoga Teacher-cum-PET was assigned to work as Care Taker Officer of N.C.C. On 09.09.2020, she herself refused to do the duties relating to N.C.C. and opted to be relieved of as Care Taker Officer of N.C.C., which clearly amounts to insubordination. She had also refused to proceed to Puri for escorting the N.C.C. cadets, vide letter dated 21.10.2003 in Annexure-10 to the rejoinder affidavit filed by the petitioner. Further, it appears from Annexure-12 dated 26.06.2004, the

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communication made to opposite party no.1 by the petitioner, that she had refused to do the duties relating to sports day as she was appointed as Yoga Teacher-cum-PET, when it was her responsibility to discharge the duties relating to sports. From the selfsame Annexure-12, it is further revealed that a complaint was received against opposite party no.1 that she was teaching Odissi dance to the children on payment in the quarter allotted to her by the School, which was in violation of Clauses-4 and 5 of the terms and conditions of appointment, which read as under:

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“Clause-4:As a teacher/Administrative Staff, you shall be the whole time employee of the Institution and shall not engage yourself in any work similar in nature to that of the Institution and/or in which you may for the time being be engaged by the Institution and/or engage yourself anywhere in any work, profession or employment either honorarily or otherwise during the period of your employment with us.

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Clause-5:You shall devote your whole time to the duties assigned to you from time to time and shall not undertake any tuition work/extra work without the written permission of the Principal.”

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Thereby, she was requested to report for evening games latest by 4.30 p.m. on 26.06.2004. In compliance of such letter dated 26.06.2004, the opposite party no.1 did not appear.

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Thus, it is evident that opposite party no.1, apart from refusal to do her duty, has also violated Clauses-4 and 5 of the appointment letter. The opposite party no.1 for negligence in her duty was issued with warning vide Annexure-16 dated 29.01.2005, but the same was of no effect. On 29.07.2005 vide Annexure-14, she sought permission to take admission in the course of Master of Physical Education (M.P.Ed.) training, but no leave was granted. As she refused to accept such letter of refusal, consequentially the same had to be communicated by post. On 23.08.2005 vide Annexure-17, opposite party no.1 refused to do the invigilation duty, as she had to go out of station without leave being sanctioned in her favour. Consequentially, for remaining absent from duty on

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15.09.2005 without informing the authority, she was asked for explanation within 24 hours vide letter dated 16.09.2005 under Annexure-3 to the writ petition. Accordingly, she sought seven days time for giving her explanation, which was rejected vide letter dated 17.09.2005.

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9.1 Furthermore, opposite party no.1 was allotted a quarter, but vide Annexure-13 she expressed her inability to take occupation of the same on the pretext of lower size (A-

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Type) compared to the type of quarter to which she was entitled to (B-Type). On 19.09.2005, she left the premises and was not available in the station, but, vide letter dated 20.09.2005, she wanted leave which was received by the School on 26.09.2005. On 28.09.2005, a letter was issued to opposite party no.1 pointing out her lapses and for immediate occupation of the quarter given to her thus in short for resumption of duties, as the E.L. which was prayed for 15 days, i.e., from 19.05.2005 to 04.10.2005 was refused, for 24^th and 25^th August 2005 she remained on leave without sanction and, thereafter, she remained absent from duties w.e.f. 19.09.2005. Consequentially, for remaining unauthorized absence from the headquarters, she was put under suspension on 01.10.2005. The letter dated 10.10.2005 issued to opposite party no.1 under Annexure-3 series clearly indicates that there was gross insubordination by opposite party no.1 and as such, she had acted in gross dereliction of

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the rules and regulations of the institution. Thus, remaining absent from duty w.e.f. 19.09.2005 without any approval of the authority amounts to abandonment of service. If there is abandonment of service, in that case there is no requirement of compliance of principles of natural justice.

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In Vijay S. Sathaye (supra) (supra), the apex Court in paragraphs-13, 14, 15 and 16 of the judgment held as follows:

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“ 13. In Jeewanlal (1929) Ltd. v. Workmen [AIR 1961 SC 1567] this Court held as under: (AIR p. 1570, para 6)

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“6. … there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.”

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(See also Shahoodul Haque v. Registrar, Coop. Societies [(1975) 3 SCC 108 : 1974 SCC (L&S) 498 : AIR 1974 SC 1896] .)

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14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as “retrenchment” from service. (See State of Haryana v. Om Parkash [(1998) 8 SCC 733 : 1999 SCC (L&S) 262] .)

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15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah [AIR 1964 SC 1272] , while dealing with a similar case, this Court observed: (AIR p. 1275, para 5)

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“5. … Abandonment or relinquishment of service is always a question of intention, and, normally,

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such an intention cannot be attributed to an employee without adequate evidence in that behalf.” A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590 : 1979 SCC (L&S) 76 : AIR 1979 SC 582]

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16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC 65 : 2000 SCC (L&S) 601] and Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2002 SCC (L&S) 965 : AIR 2000 SC 2783] this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant [(2006) 11 SCC 42 : (2007) 1 SCC (L&S) 327] , Chief Engineer (Construction) v. Keshava Rao [(2005) 11 SCC 229 : 2005 SCC (L&S) 872] and Bank of Baroda v. Anita Nandrajog [(2009) 9 SCC 462 : (2009) 2 SCC (L&S) 689]

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Applying the above principles to the present context and on the basis of the factual discussions made above, since opposite party no.1 remained absent without getting prior permission and without sanction of leave, she should be treated to be resigned or ceased to be in service. The reason is obvious that opposite party no.1 was prosecuting her study in Government College of Physical Education, Bhubaneswar during the period 2005-06 and 2006-07 and the same was also without prior knowledge of the employer, namely, the present petitioner. Therefore, she tried to avoid

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any type of correspondence and duty to be discharged by her in consonance with the post held by her and acted in dereliction to the rules and regulations applicable to her and, as such, she has abandoned the service voluntarily. In such case, there is no need to hold an enquiry or give any notice, as it would amount to useless formalities. Thereby, the finding of the Director, Secondary Education, Orissa in his impugned order dated 16.04.2010 under Annexure-9 communicated on 21.04.2010 holding that the termination of opposite party no.1 from service is not valid cannot sustain in the eye of law. More so, while coming to such conclusion, the Director has not applied his mind nor has taken note of the facts which are discussed above and, as such, no reasons have been assigned why he has come to such a conclusion that termination is not valid.

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In M/s. Essel Mining & Industries Ltd. (supra), the Division Bench of this Court in paragraphs 11, 12 and 13 held as follows:

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“11. Franz Schubert said"Reason is nothing but analysis of belief"

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In Black's Law Dictionary, reason has been defined as a -

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"faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions."

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It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe.

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12. In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice.

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Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915.

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13. Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority.”

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Similarly, in B.A. Linga Reddy (supra), the apex Court in

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paragraphs 18, 19, 20, 22 and 26 held as follows:

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“18. In Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India [(1976) 2 SCC 981] , it was held: (SCC pp. 98687, para 6)

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“6. … It is now settled law that where an authority makes an order in exercise of a quasijudicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd. [(1979) 3 SCC 225 : 1979 SCC (L&S) 261] But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated 8-12-1961 which were repeated in the subsequent representation dated 4-6-1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.”

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19. This Court in Rani Lakshmi Bai Kshetriya Gramin Bank case [Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney, (2009) 4 SCC 240 : (2009) 1 SCC (L&S) 806] while relying upon S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445] has laid down thus: (Rani Lakshmi Bai Kshetriya Gramin Bank case [Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney, (2009) 4 SCC 240 : (2009) 1 SCC (L&S) 806] , SCC p. 243, para 8)

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“8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445] , is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.”

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20. A Constitution Bench of this Court has laid down in Krishna Swami v. Union of India [(1992) 4 SCC 605] that if a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Articles 14 and 21 of the Constitution. This Court has laid down thus: (SCC p. 637, para 47)

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“47. … Undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21. But exceptions are envisaged keeping institutional pragmatism into play, conscious as we are of each other's limitations.”

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xx xx xx

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22. In Divl. Forest Officer v. Madhusudhan Rao [(2008) 3 SCC 469 : (2008) 1 SCC (L&S) 788] , this Court has laid down thus: (SCC p. 473, para 20)

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“20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.”

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xx xx xx

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26. It is apparent that there is no consideration of the objections except mentioning the arguments of the rival parties. Objections both factual and legal have not been considered much less reasons assigned to overrule them. Even in brief, reasons have not been assigned indicating how objections are disposed of.”

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In view of the principles of law discussed above, it is apparently clear that reason is nothing but analysis of belief and it is a necessary concomitant to passing an order, while the authority discharging its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority. As such, if a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair,

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unjust and violating Articles 14 and 21 of the Constitution. The reasons are required to be given to know the mind of the authority, who has passed the order and in absence of the same the order cannot sustain.

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Applying this principle to the present context, the Director, while passing the order impugned in Annexure-9, having not assigned reasons, the same is arbitrary, unfair, unjust and violative of Articles-14 and 21 of the Constitution of India and, thereby, the same cannot sustain in the eye of law. In view of the findings arrived at above that the opposite party no.1 has abandoned the service and the order impugned in Annexure-9 having been passed without assigning reasons, the same cannot sustain in the eye of law.

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In view of the facts and law, as discussed above, Issue No.(2) is answered in favour of the petitioner.

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Issue No.(3)

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On 16.11.2005, the service of opposite party no.1

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was terminated and against the said order of termination the opposite party no.1 stated to have preferred appeal before the

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Director, Secondary Education, Orissa, which fact was intimated to the petitioner by her vide Annexure-5 enclosing a copy of the appeal memo, which does not bear any number and as such no intimation was issued to the petitioner by the Director, Secondary Education, Orissa with regard to the said appeal. Though the said appeal bears a stamp of the Director, Secondary Education, Orissa, Bhubaneswar dated 25^th November, 2005, but what happened to the said appeal memo, nothing has been placed on record nor has the same been disclosed by the opposite party no.1 at any point of time why the opposite party no.1 has not pursued the same. But she had filed a writ petition bearing W.P.(C) No. 5710 of 2006, which was not listed till 2008 and no notice was issued to the petitioner. The opposite party no.1 filed another appeal memo before the Regional Joint Director of Secondary Education, Berhampur in 2007, in which there was no mentioning about the appeal preferred before the Director on 25.11.2005 and, as such, there was no mentioning with regard to the filing of the W.P.(C) No. 5710 of 2006. Thereby, the authorities have been kept in dark with regard to the filing of appeal in 2005 and

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also the writ application being W.P.(C) No. 5710 of 2006. The said writ petition was listed on 25.02.2008 for the first time after lapse of two years of filing. In the meanwhile, the Appeal Case No.99 of 2007 was filed before the Regional Joint Director, Secondary Education, Berhampur and this fact was not brought to the notice of this Court. More so, the petitioner was not noticed, but subsequently the opposite party no.1 withdrew the said writ petition and took a liberty to approach the Director, Secondary Education, Orissa, Bhubaneswar for fresh appeal and also took liberty that the same may not be dismissed on the ground of limitation. When fresh appeal was filed before the Director, Secondary Education, Orissa, Bhubaneswar, in compliance of the order dated 25.02.2008 passed by this Court in W.P.(C) No.5710 of 2006, nothing was disclosed about the appeal preferred before the very same Director in 2005 and the Regional Joint Director in 2007, and thereby, the opposite party no.1 has suppressed the material facts before the authorities while preferring appeal in 2008.

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On 18.11.2008, a letter was received from

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Regional Joint Director, Secondary Education, Berhampur that the Appeal Case No. 99/2007 was filed by opposite party no.1. The order sheet enclosed to the Appeal Case No. 99/2007 indicates that pursuant to an order of this Court dated 25.02.2008 passed in W.P.(C) No. 5710 of 2006 the opposite party no.1 did not appear in the pretext that she had obtained an order from the Court to file appeal before the Director, Secondary Education, Orissa, Bhubaneswar and this fact was not brought to the notice of the Regional Joint Director, Secondary Education, Berhampur that she has preferred writ petition in 2006. In Appeal Memo No. 99 of 2007 she had concealed the fact. Consequently, the said appeal was dismissed by the Regional Joint Director for non-appearance. When Appeal No. 9/2008 was filed before the Director, Secondary Education, Orissa, Bhubaneswar, this fact was also not brought to the notice of the Director. Without disclosing the earlier appeals preferred before the Director, Secondary Education, Bhubaneswar in the year 2005 as well as the Regional Joint Director, Berhampur in the year 2007, the

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Appeal No. 9/2008 was filed and thereby, there was suppression of material facts before the authorities as well as this Court. Thus, a fraud has been played by opposite party no.1, which vitiates the entire proceedings. Consequentially, the order impugned in Annexure-9 cannot sustain in the eye of law.

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If it is considered from other angel, the

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opposite party no.1 was prosecuting her higher studies between the period from 2005-06 and 2006-07 without intimating the employer, the petitioner herein, and remained absent without sanction of leave and, thereby, for voluntarily abandoning the service she was terminated from service. Therefore, against the order of termination dated 01.10.2005 though she had preferred appeal before the Director, Secondary Education, Orissa in the year 2005 and thereafter preferred appeal before the Regional Joint Director, Secondary Education, Berhampur in the year 2007, she did not pursue

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the same. The reasons for non-pursing those matters may be that in the event any favourable order had been passed, she

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would not have been able to complete her course. Furthermore, she had not disclosed the fact that she had already preferred appeals in 2005 before the Director, Secondary Education, Orissa and in the year 2007 before the Regional Joint Director, Berhampur, as she knew that the writ petition would be dismissed and she would be asked to pursue the appeals, which are pending before the authorities concerned. In any case, the opposite party no.1 having not disclosed the factum of the penedency of the appeals, both before the authorities as well as this Court she had played fraud and thereby she is not entitled to get any relief from this Court.

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In Lazarus Estate Ltd. v. Beasley, (1956) 1 All ER 341 (CA), the Court observed without equivocation that “no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.”

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In Vimla v. Delhi Administration, AIR 1963

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SC 1572, the apex Court held that the expression “fraud”

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involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage.

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20. In S.P. Chengalvaraya Naidu v. Jagannath,

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AIR 1994 SC 853, the apex Court held it is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. “Fraud avoids all judicial acts ecclesiastical or temporal.”

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In United India Insurance Co. Ltd. v.

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Rajendra Singh, AIR 2000 SC 1165: (2000) 3 SCC 581, the apex Court observed that “Fraud and justice never dwell together” ( fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

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In Andhra Pradesh State Financial

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Corporation v. GAR Re- Rolling Mills, AIR 1994 SC 2151, the apex Court observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do

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justice by promotion of good faith. “Equity is, also, known to prevent the law from the crafty evasions and sub-letties invented to evade law.”

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Similar view has also been taken in State of Maharashtra v. Prabu, (1994) 2 SCC 481.

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Applying the above principles of law to the present context, this Court is of the considered view that the opposite party no.1 has played fraud on the authority as well as this Court by not disclosing the fact, thereby, the order impugned in Annexure-9 dated 16.04.2010 communicated on 21.04.2010 cannot sustain and the same is liable to be quashed.

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It is made clear that opposite party no.1 had not come to this Court with clean hands rather she had filed a false affidavit, when she earlier approached this Court by filing W.P.(C) No. 5710 of 2008, inasmuch as she had not disclosed the factum in preferring appeal since 2005 before the Director, Secondary Education, Orissa. The jurisdiction of this Court while exercising power under Article 226 of the Constitution of

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India is extraordinary and discretionary. Therefore, it is of utmost necessary that the party approaching the writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition be dismissed at the threshold without considering the merits of the claim.

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In R. V. Kensington Income Tax Commrs.

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(1917) 1 KB 486, Scruttaon, L.J., has succinctly stated the following words:

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“… it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts—it says facts, not law. He must not misstate the law if he can help it—the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.”

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A prerogative remedy is not a matter of course.

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While exercising extraordinary power a writ court would

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certainly bear in mind the conduct of the party who invokes

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the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, “ We will not listen to your application because of what you have done .” The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.

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In Kensington Income Tax Commrs . [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] Viscount Reading, C.J . observed:

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“… Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of

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this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”

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The above principles have been accepted in our

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legal system also. As per settled law, the party who invokes the

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jurisdiction of the apex Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the court knows law but not facts”.

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29. In K.D. Sharma mentioned supra, wherein the

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apex Court, taking into consideration various judgments, in paragraphs 41 to 51 observed as follows:

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“41. In State of Haryana v. Karnal Distillery Co. Ltd. [(1977) 2 SCC 431] almost an agreed order was passed by the Court that on expiry of the licence for manufacturing of liquor on 6-9-1976, the distillery would cease to manufacture liquor under the licence issued in its favour. Then, the Company filed a petition in the High Court for renewal of licence for manufacture of liquor for 1976-1977, and the Court granted stay of dispossession. In appeal, the Supreme Court set aside the order granting stay of dispossession on the ground that the petitioner Company in filing the petition in the High Court had misled it and started the proceedings for oblique and ulterior motive.

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42. In Vijay Kumar Kathuria v. State of Haryana [(1983) 3 SCC 333] it was the case of the petitioners that the provisional admissions granted to them were not cancelled and they were continuing their studies as postgraduate students in Medical College on the relevant date. On the basis of that statement, they obtained an order of status quo. The Supreme Court ordered inquiry and the District Judge was asked to submit his report whether the provisional admissions granted to the petitioners were continued till 1-10-1982 or were cancelled. The report revealed that to the knowledge of the petitioners their provisional admissions were cancelled long before 1-10-1982 and thus, the petitioners had made false representation to the Court and obtained a favourable order. Dismissing the petition, this Court observed: (SCC p. 334, para 1)

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“1. … But for the misrepresentation this Court would never have passed the said order. By reason of such conduct they have disentitled themselves from getting any relief or assistance from this Court and the special leave petitions are liable to be dismissed.”

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43. Deprecating the reprehensible conduct of the petitioners as well as of their counsel, the Court stated:

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(Vijay Kumar Kathuria case [(1983) 3 SCC 333] , SCC pp. 334-35, para 3)

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“3. Before parting with the case, however, we cannot help observing that the conduct or behaviour of the two petitioners as well as their counsel (Dr. A.K. Kapoor who happens to be a medico-legal consultant practising in courts) is most reprehensible and deserves to be deprecated. The District Judge's report in that behalf is eloquent and most revealing as it points out how the two petitioners and their counsel (who also gave evidence in support of the petitioner's case before the District Judge) have indulged in telling lies and making reckless allegations of fabrication and manipulation of records against the college authorities and how in fact the boot is on their leg. It is a sad commentary on the scruples of these three young gentlemen who are on the threshold of their careers. In fact, at one stage we were inclined to refer the District Judge's report both to the Medical Council as well as the Bar Council for appropriate action but we refrained from doing so as the petitioners' counsel both on behalf of his clients as well as on his own behalf tendered unqualified apology and sought mercy from the court. We, however, part with the case with a heavy heart expressing our strong disapproval of their conduct and behaviour….”

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(emphasis supplied)

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44. In Welcom Hotel v. State of A.P. [(1983) 4 SCC 575 : 1983 SCC (Cri) 872] certain hoteliers filed a petition in this Court under Article 32 of the Constitution challenging the maximum price of foodstuffs fixed by the Government contending that it was uneconomical and obtained ex parte stay order. The price, however, was fixed as per the agreement between the petitioners and the Government but the said fact was suppressed. Describing the fact as material, the Court said: (SCC pp. 580-81, para 7)

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“7. … Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.”

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45. In Agricultural & Processed Food Products v. Oswal Agro Furane [(1996) 4 SCC 297] the petitioner filed a petition in the High Court of Punjab and Haryana which

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was pending. Suppressing that fact, it filed another petition in the High Court of Delhi and obtained an order in its favour. Observing that the petitioner was guilty of suppression of “very important fact”, this Court set aside the order of the High Court.

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46. In State of Punjab v. Sarav Preet [(2002) 9 SCC 601 : 2002 SCC (L&S) 1085] A obtained relief from the High Court on her assertion that a test in a particular subject was not conducted by the State. In an appeal by the State, it was stated that not only the requisite test was conducted but the petitioner appeared in the said test and failed. Observing that the petitioner was under an obligation to disclose the said fact before the High Court, this Court dismissed the petition.

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47. In Union of India v. Muneesh Suneja [(2001) 3 SCC 92 : 2001 SCC (Cri) 433] the detenu challenged an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by filing a petition in the High Court of Delhi which was withdrawn. Then he filed a similar petition in the High Court of Punjab and Haryana wherein he did not disclose the fact as to filing of the earlier petition and withdrawal thereof and obtained relief. In an appeal by the Union of India against the order of the High Court, this Court observed that nondisclosure of the fact of filing a similar petition and withdrawal thereof was indeed fatal to the subsequent petition.

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48. A special reference may be made to a decision of this Court in All India State Bank Officers Federation v. Union of India [1990 Supp SCC 336 : 1991 SCC (L&S) 429 : (1991) 16 ATC 454] . In that case, promotion policy of the Bank was challenged by the Federation by filing a petition in this Court under Article 32 of the Constitution. It was supported by an affidavit and the contents were affirmed by the President of the Federation to be true to his “personal knowledge”. It was stated: (SCC p. 337, para 2)

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“2. … [T]he petitioners have not filed any other similar writ petition in this Honourable Court or any other High Court.”

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In the counter-affidavit filed on behalf of the Bank, however, it was asserted that the statement was “false”. The Federation had filed a writ petition in the High Court of Andhra Pradesh which was admitted but interim stay was refused. Another petition was also filed in the High Court of Karnataka. It was further pointed out that the promotion policy was implemented and 58 officers were promoted who were not made parties to the petition. In the affidavit-in-rejoinder, once again, the stand taken by the petitioner was sought to be justified. It was stated: “The deponent had no knowledge of the writ petition filed before the High Court of Andhra Pradesh, hence as soon as it came to his knowledge the same has been withdrawn. Secondly, the petitioners even today do not know the names of all such 58 candidates who have been promoted/favoured.” It was contended on behalf of the Bank that even that statement was false. Not only the petitioner Federation was aware of the names of all the 58 officers who had been promoted to the higher post, but they had been joined as party-respondents in the writ petition filed in the Karnataka High Court, seeking stay of promotion of those respondents. It was, therefore, submitted that the petitioner had not come with clean hands and the petition should be dismissed on that ground alone.

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49. “Strongly disapproving” the explanation put forth by the petitioner and describing the tactics adopted by the Federation as “abuse of process of court”, this Court observed: (All India State Bank Officers Federation case [1990 Supp SCC 336 : 1991 SCC (L&S) 429 : (1991) 16 ATC 454] , SCC pp. 340-41, paras 9 & 11)

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“9. … There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process. …

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***

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11. Apart from misstatements in the affidavits filed before this Court, the petitioner Federation has clearly resorted to tactics which can only be described as abuse of the process of court. The simultaneous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associations of the officers of the Bank, is a practice which has to be discouraged. Sri

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Sachar and Sri Ramamurthi wished to pinpoint the necessity and importance of petitions being filed by different associations in order to discharge satisfactorily their responsibilities towards their respective members. We are not quite able to appreciate such necessity where there is no diversity but only a commonness of interest. All that they had to do was to join forces and demonstrate their unity by filing a petition in a single court. It seems the object here in filing different petitions in different courts was a totally different and not very laudable one.”

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(emphasis supplied)

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50. “Deeply grieved” by the situation and adversely commenting on the conduct and behaviour of the responsible officers of a premier bank of the country, the Court observed: (All India State Bank Officers Federation case [1990 Supp SCC 336 : 1991 SCC (L&S) 429 : (1991) 16 ATC 454] , SCC p. 342, para 12)

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“12. We have set out the facts in this case at some length and passed a detailed order because we are deeply grieved to come across such conduct on the part of an association, which claims to represent high placed officers of a premier bank of this country. One expects such officers to fight their battles fairly and squarely and not to stoop low to gain, what can only be, temporary victories by keeping away material facts from the court. It is common knowledge that, of late, statements are being made in petitions and affidavits recklessly and without proper verification not to speak of dishonest and deliberate misstatements. We, therefore, take this opportunity to record our strong and emphatic disapproval of the conduct of the petitioners in this case and hope that this will be a lesson to the present petitioner as well as to other litigants and that at least in future people will act more truthfully and with a greater sense of responsibility.”

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51. Yet in another case in Vijay Syal v. State of Punjab [(2003) 9 SCC 401 : 2003 SCC (L&S) 1112] this Court stated: (SCC p. 420, para 24)

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“24. In order to sustain and maintain the sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or

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knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take the consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters is either mistaken or lightly taken instead of learning a proper lesson. Hence there is a compelling need to take a serious view in such matters to ensure expected purity and grace in the administration of justice.”

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Apart from the above, it appears that the facts, which have been pleaded in the writ petition, have not been denied in the counter affidavit filed by the opposite party no.1. Due to non-denial thereof, it amounts to admission in view of the judgment of the apex Court in Bharat Singh and others (supra).

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In view of the facts and law discussed above, Issue No.(3) is answered in favour of the petitioner.

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In view of the foregoing discussions, even though this Court, while answering Issue No(1), has held that the Director, Secondary Education, Orissa, Bhubaneswar has

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jurisdiction to entertain the appeal, but the order impugned passed by him vide Annexure-9 dated 16.04.2010 and communicated on 21.04.2010 cannot sustain in the eye of law, in view of the answers given in respect of Issue Nos.(2) and (3) and, thereby, the same is liable to be quashed and is hereby quashed.

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