Sarada Devi Vs State and Ors.

Sashikanta Mishra,J . The Petitioner was appointed as Lecturer in Odia against the 1^st post on 31.7.1990 by the Governing Body of Gopabandhu Women’s College, Athagarh. She joined on 01.8.1990. Subsequently she remained on leave on medical ground. On 14.9.2003 she received a show cause notice dated 27.7.2003 issued by the Secretary of the Governing Body as to why disciplinary action shall not be taken against her for her unauthorized leave. She was also intimated that her services had been terminated by the Governing Body from 06.8.2003. The Petitioner requested for withdrawal of the order of termination. Being thus mentally harassed, she submitted her resignation and demanded an experience certificate, which the Governing Body did not furnish. She sought to withdraw the resignation on 25.11.2003, but it was not accepted. The institution was declared an Aided Educational Institution w.e.f. 01.1.2004. However, the Petitioner on wrong legal advice approached the Director against the action of the management on

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03.3.2004. Her representation was disposed of by the Director by order dated 17.9.2004 in rejecting her complaint. Being aggrieved she approached the State Education Tribunal by filing an appeal being Appeal No.5/2005. By order dated 19.7.2005, said appeal was dismissed on the ground of limitation. The Petitioner approached this Court against the order of the Tribunal in W.P(C) No.9658/2005, which was converted to F.A.O. No.351/2005. By order dated 19.4.2010, this Court disposed of the F.A.O. by granting liberty to the Petitioner to file Writ Petition against the order passed by the Director. Accordingly, the Petitioner has filed the present Writ Petition with the following prayer;

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“Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to;

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(i)Quash the impugned order dated 17.9.2004 passed by the learned Director under Annexure-7 and thereby reinstate the Petitioner in service with all consequential and monetary benefits; (ii)Pass such other order (s)/direction (s) as may be deemed fit and proper in the bonafide interest of justice.”

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2 . Despite sufficient service no counter affidavit

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was filed by any of the Opposite Parties including the

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Governing Body of the College and the private Opposite Party, who was appointed against the vacancy created by termination of the service of the Petitioner.

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3. Heard Mr. K.P.Mishra, learned Senior counsel with Mr. S. Mohapatra learned counsel for the Petitioner, Mr. A.R.Dash, learned Addl. Government Advocate for the State and Mr. P.K.Rath, learned Senior counsel with Mr.P.K.Satapathy, learned counsel appearing for the private Opposite Party No.4.

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4. Mr. Mishra, learned Senior counsel would argue that the Governing Body has taken prevaricating stands in the matter inasmuch as on one hand it is stated that the Petitioner’s services were terminated on 23.7.2003 whereas on the other hand, it is stated that the termination was w.e.f. 06.8.2003. The Governing Body despite taking such a stand admitted that the Petitioner had submitted resignation which was accepted on 06.12.2003. Even accepting that the Petitioner had submitted resignation, it is admitted by the Governing Body that she had withdrawn the same

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in her letter dated 25.11.2003. Moreover, the

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principles of natural justice were not followed and therefore, the Director ought to have interfered in the matter by directing reinstatement of the Petitioner in service.

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5. Mr. A.R.Dash, learned Addl. Government Advocate for the State, would argue that the order of the Director contains no infirmity or illegality as the same is based on verification of the relevant records produced by the Management and on hearing the petitioner.

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6. Mr. P.K.Rath, learned Senior counsel, would

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argue that his client was appointed in the termination

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vacancy after following due process of selection. His services were duly approved and he was brought under

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the grant-in-aid fold. The Petitioner having willfully resigned from service and the same being duly accepted by the Governing Body, she can lay no further claim to the post in question

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7. It is evident that the facts of the case lie in a

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narrow compass. After hearing learned counsel for the parties and on going through the documents enclosed to the Writ Petition, this Court is also left with no doubt that the Governing Body has indeed taken prevaricating stands as regards the fact of severance of employment of the Petitioner. In the letter dated 02.9.2003, copy of which is enclosed as Annexure-3 series, it is stated that the services of the Petitioner were terminated by the authority vide letter dated 285 dtd.23.7.2003. The same is reiterated in the letter dtd.20.2.2004, copy of which is enclosed as annexure-

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Surprisingly, in the letter dtd.06.8.2003, copy of which is enclosed as Annexure-6, it is stated that the authority terminated the services of the Petitioner on 6.8.2003. The Governing Body took yet another stand before the Director to the effect that in its meeting held on 06.12.2003 the resignation submitted by the Petitioner was accepted. Thus, if the plea of the Management taken before the Director is to be accepted, it would automatically nullify its earlier plea

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of terminating the services of the Petitioner either on 23.7.2003 or 06.8.2003. Obviously, the question of acceptance of resignation of an employee, who has already been terminated does not arise.

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8. Coming to the stand taken by the Petitioner that she had submitted her resignation, it is seen that according to her the same was on 28.10.2003. She claims to have withdrawn such resignation by her letter dtd.25.11.2003. There is no proof of submission of the aforesaid letter by the Petitioner. On the contrary, in the letter dtd.20.2.2004 the Governing Body has accepted that she had sought to withdraw her resignation. In the said letter there is reference to her resignation letter dated 28.10.2003 and letters dtd.30.12.2003 and 04.2.2004. Significantly, there is no mention of the letter dtd.25.11.2003 purportedly submitted by the Petitioner withdrawing her resignation. In the absence of any proof of issuance of the letter dtd.25.11.2003 by the Petitioner, it is not possible for this Court to take a view thereon.

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9. Reading of the impugned order passed by the Director, however, reveals that the Ex-Secretary of the Governing Body of the College, who was present during hearing had produced the original Governing Body Resolution Book, which the Director perused and found that the resignation of the Petitioner was accepted by the Governing Body on 06.12.2003. Under such circumstances even if accepting that the letters dtd.30.12.2003 and 04.2.2004 of the Petitioner referred to in the letter of the Governing Body dated 20.2.2004 were letters of withdrawal of resignation, the same would not enure to the benefit of the Petitioner as by such time her resignation had already been accepted w.e.f. 06.12.2003. Thus, as per the sequence of facts narrated above, it is evident that the resignation submitted by the Petitioner was accepted by the Governing Body on 06.12.2003 resulting in severance of her employment.

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10. Such being the factual position, her subsequent withdrawal of resignation can have no legal sanctity. To such extent therefore, there is no infirmity much less any illegality in the order passed by the Director for this Court to be persuaded to interfere therewith.

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11. Thus, from a conspectus of the discussion on facts of the case and the materials on record, this Court finds that the Petitioner’s resignation submitted

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on 28.10.2003 being accepted by the Governing Body on 06.12.2003, she can lay no further claim on the post she had occupied.

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12. In the result, the Writ Petition is found to be devoid of merit and is therefore, dismissed. There shall be no order as to cost.

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…………….…………….

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Sashikanta Mishra, Judge

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Signature Not Verified

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Ashok Kumar Behera