B.R.Sarangi,J. - (1.) The Managing Committee of Delhi Public School, Damanjodi, Koraput, represented through its 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.
(2.) 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. 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. The appointment of opposite party no.1 was subject to condition that her service can be terminated at any time by the 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. 2.2 On 12.12.2002, opposite party no.1 intimated 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. 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 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. 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 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. 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 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.
(3.) 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 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 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. 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. In support of her contentions, learned counsel 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; M/s. Essel Mining & Industries Ltd. v. State of Odisha , 2017 AIR(Ori) 74; K.D. Sharma v. Steel Authority of India Limited , 2008 12 SCC 481and Bharat Singh v. State of Haryana , 1988 AIR(SC) 2181. ;