Prasanta Kumar Das & Others vs State Of Odisha & Others

Dixit Krishna Shripad, J

Petitioners are complaining before the Writ Court against the order of the District Education Officer, Jagatsinghpur-Opposite Party No.6 dated 05.12.2022, copy whereof avails at Annexure-3 whereby he has annulled the removal of one of the members of Alumni Committee in question and found fault with induction of other two by the Committee, which comprises of petitioners as well.

Learned counsel appearing for the petitioners seeks invalidation of the impugned order (Annexure-3) on the following four grounds:-

a. The District Education Officer has nothing to do with the affairs of the Alumni Committee, which is a society registered under the provisions of Society Registration Act, 1860;

b. The petitioners were not given an opportunity of hearing nor other stake holders were notified;

c. OP No.6 proceeded on a wrong premise that there is no provision in the Memorandum of Association providing for removal of the members; and

d. The due procedure has not been followed and therefore, the petitioners are prejudiced.

Learned AGA Mr.Behura appearing for the official opposite parties opposes the petition refuting the submissions made on behalf of the petitioners. Firstly, he submits that the issue of jurisdiction is hit by res judicata in view of a Co-ordinate Bench decision of this Court in W.P.(C) No.21743 of 2022 disposed off on 30.08.2022; opportunity of hearing had been given, is mentioned in the impugned order itself and therefore, contention to the contrary is wrong; the impugned order has been made by the District Education Officer after following the due procedure.

Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

4.1. The first contention of petitioners that the District Education Officer lacked jurisdiction to intervene in the affairs of the Committee in question is liable to be rejected on the ground of res judicata in view of the Co-ordinate Bench decision to which they too were parties; that decision did confer jurisdiction on the District Education Officer rightly or wrongly, the same having not been put in challenge any further, it has attained finality. Reliance of Mr.Swain, learned counsel for the petitioners on Apex Court decision in State of Meghalaya v. Union of India; 2023 SCC OnLine SC 613 to the effect that Court cannot confer jurisdiction on an authority which otherwise lacks it, would not come to the aid of his clients. As a broad proposition, its authenticity cannot be disputed is true. In State of Punjab v. Gurdev Singh & Ashok Kumar, AIR 1992 SC 111, a three-Judge Bench of the Apex Court, at paragraphs 5 & 6, has held that an order may be wrong; however, it does not bear the brand of invalidity on its forehead; unless set aside by a higher authority or Court, even a void order would remain effective for all ostensible purposes. A judgment being wrong because arguably it contravenes the established norms of law is one thing and the efficacy of a wrong judgment is another. A wrong judgment or a decree nevertheless attracts the doctrine of res judicata and decision to that effect galore in the law reports. Admittedly, the Co-ordinate Bench decision dated 30.08.2022 having attained finality, there being no further challenge, its authenticity cannot be re-adjudicated by this Court in a collateral proceeding like this, as rightly contended by Mr.Behura, learned AGA.

4.2. The second contention of petitioners that they were not given an opportunity of hearing appears to be true. Removal or induction of members to the society/association is a serious thing.

It may balance or imbalance the decision making even in policy matters. Therefore, such a course unilaterally cannot be undertaken while adjudging a decision of removal or induction, as the case may be, as submitted by learned counsel Mr.Swain. The principles of natural justice are sacrosanct; at times they draw sanctity from Article 14 jurisprudence. Added, even the God is said to have given an opportunity of hearing to Adam & Even before punishing them for eating the proscribed apple in the Eden Garden. That being the position, Mr. Swain, learned counsel for the petitioners is right in flawing the impugned order and seeking remittance of the matter for fresh consideration at the hands of the authority, whichever it be.

4.3. The vehement contention of Mr.Behura, learned AGA that the impugned order specifically mentions the opportunity of hearing given to the stake holders, could not come to the rescue of opposite parties, absolutely no evidentiary material vouching the contention having been placed on record. Which postman carried what mail to the petitioners is conspicuously left un-pleaded in the counter. When absence of notice is pleaded, service thereof has to be proved by him, who contends to the contrary. Therefore, the said contention cannot be countenanced. At the same time, the submission of petitioners’ counsel that in the absence of a provision in the Memorandum of Association that no member of Association can ever be removed, cannot be countenanced, vide Shenton v. Smith, 1895 AC 229 in the absence of prohibition removal can be made on the proven misconduct. A contention in variance would be disastrous to Association of the kind.

4.4. The last contention of Mr. Swain that due procedure has not been followed need not be much examined by this Court, inasmuch as the matter is being remitted to the portals of District Education Officer-Opposite Party No.6 for consideration afresh after giving opportunity of hearing to all the stakeholders including the petitioners in a time bound way.

In the above circumstances, this petition succeeds in part and a Writ of Certiorari issues quashing the impugned order (Annexure-3); matter is remitted to District Education Officer-O.P. No.6 for a fresh consideration after giving opportunity of participation to all the stake holders including the petitioners herein. All contentions of the parties are kept open. Remand to be heard and decided within an outer limit of three (3) months.

In the fitness of things, the petitioners or the Alumni Association shall not take any major policy decision nor any decision having financial implications till after and subject to decision on the remand.

Now, no costs.

Web copy of judgment to be acted upon by all concerned.