G.B. Patnaik, J.
1. Defendant No. 1 is the appellant against the affirming judgment.
2. The plaintiff filed the suit for a declaration that he was to be deemed to be reinstated in service and continuing in service and for his arrear salary from 11. 11. 1974 to 11. 12 1975, the date of filing of the suit, and for injunction against defendant No. 1 not to obstruct She plaintiff from discharging his duties as a teacher. Plaintiff was appointed as a teacher in July, 1969 by defendant No. 1 in the M. E. School at Veda-Ramachandrapur and on his application for grant of leave to undergo training course, he was granted leave for one year with effect from 5. 10. 1972. According to the plaintiff, on completion of his training he applied to the Secretary of the Managing Committee of the School to join his former post, but he was orally informed that since plaintiff had applied for leave for one year and after expiry of the said one year no fresh application had been filed, his services were terminated and therefore, the question of plaintiff joining in service would not arise. According to the plaint allegation, the plaintiff was under the impression that the study leave granted by defendant No. 1 was for the entire period of duration of the training course and, therefore, there was no occasion for him to apply for fresh leave after expiry of one year. On 11. 11. 1974, the Orissa Education (Amendment) Act, 17 of 1974, came into force and under Section 7(3) of the said Act, the plaintiff was to be deemed to be reinstated in service since his termination had not been approved by the competent authority. On these averments, the suit was filed for the reliefs as aforesaid. The plaintiff also averred that notice under Section 80 of the Code of Civil Procedure was duly served on defendants 2 to 4 which they received on 6. 12. 1975.
3. Defendant No. 1 actually contested the suit by filing a detailed written statement. According to the said written statement, the application for study leave was for a period of one year which was allowed on 5. 10. 1972 and, therefore, leave expired on 5. 10. 1973. Since no fresh application was made and the whereabouts of the plaintiff were not known, the Managing Committee terminated his service by resolution dated 5. 10. 1973. According to the defendant, the provisions of Section 7(3) of the Amendment Act are not applicable to the case of the plaintiff and, therefore, the plaintiff is not entitled to the relief claimed in the suit.
Defendants 2 and 4 merely adopted the written statement of defendant No. 1.
4. On these pleadings, the trial Court framed as many as seven issues and on issues Nos. 1 and 2 came to hold that the termination of plaintiff's service on 5. 10. 1973 attracted the provision of Section 7(1) of the Orissa Education (Amendment) Act of 1974 and no approval of the order of termination being taken within the period of one month from the date of commencement of the Act, the teacher should be deemed to have been reinstated in service with effect from the day following the date of expiry of a period of one month from the date of commencement of the Amendment Act. In that view of the matter, the aggrieved teacher could not have invoked the jurisdiction of the Tribunal and the Civil Court would gave jurisdiction to entertain the suit. On issues Nos. 5 and 6, the trial Court found that the resolution of the Managing Committee (Ext. J) dated 5. 10. 1973 terminating the services of the plaintiff was inoperative, but the plaintiff would not be entitled to any emoluments for the period between the date of termination and the date on which he was reinstated and, therefore, plaintiff was not entitled to any arrear pay or D. A. On issue No. 3, the trial Court found that it was true that the plaintiff did not apply for any extension of leave after expiry of one year but this being a study leave covered the entire period of study and in such circumstances, Article 287 (28) of the Orissa Education Coda would have no application. On issue No. 4, the trial Court found that the plaintiff was appointed as teacher in Veda-Ramachandrapur Middle English School. On these findings, the trial Court decreed the suit and directed that the plaintiff be declared to be reinestated in service with effect from 1. 4. 1974 but would not be entitled to any emoluments for the period intervening the date of termination and the date of the reinstatement.
5. On appeal by the Managing Committee (defendant No. 1) the lower appellate Court modified the decree to the effect that the reinstatement of the plaintiff must be with effect from 12. 11. 1974 in place of 1.4. 1974 as directed by the trial Court. It appears from the order of the lower appellate Court that the learned counsel for the appellant conceed to the fact that the termination of plaintiff's service would be governed by Section 7(2) of the Orissa Act 17 of 1974 and admittedly no approval of the Director of Public Instruction was obtained.
The plaintiff who was respondent No. 1 in the lower appellate Court had also filed a cross-objection and his cross-objection was allowed to the extent that plaintiff is entitled to arrear salary from 12. 11.1974 till the date of filing of the suit excepting the period for which he was continuing in service in some other school which is from 1. 12.1974 to . 31 3. 1975. On these conclusions, the appeal was dismissed and the , cross-objection was allowed in part.
6. When this second appeal came up for admission oh 18. 4.1979, the learned Judge who heard the matter under Order 41, Rule 11, Code of Civil Procedure, passed the following order :
'...Heard Mr. Misra The several contentions raised in grounds of appeal do not impress me as questions of law. At the hearing of the matter under Order 41, Rule 11, C. P. C., Mr. Misra, however, raises one further contention, namely, that in view of the provision of Section 7 introduced into the Orissa Education Act by Orissa Act 17 of 1974, the teacher should be deemed to have been reinstated after the expiry of one month from the date of enforcement of the Amending Act The Amending Act cams into force on 11. 11. 74, and therefore, in terms of the proviso to Section 7(2) of the Amending Act, the teacher could be deemed to have been reinstated only from 12. 12. 1974, and not from 12. 11. 1974, as indicated in the appellate decision in paragraph-5 of the judgment This, in my view, raises an interesting question of law which may be examined. The second appeal is admitted on this ground alone, all other grounds haying been rejected.'
7. Mr. Misra, the learned counsel for the appellant, submits that the second appeal having been admitted, the order of the learned Judge dated 18. 4. 1979 while hearing the matter under Order 41, Rule 11 of the Code restricting the appeal to a particular ground is without jurisdiction and the appellant, therefore, is entitled to urge any ground in support of the appeal. On the merits of the case, the learned counsel submits that the concerned teacher not having made any application after expiry of his leave period, his absence without leave rendered him liable to be discharged at the discretion of the Managing Committee and the said order of termination passed by the Managing Committee will not attract the provisions of Section 7 of Orissa Act 17 of 1974.
8. So far as the first submission of Mr. Misra is concerned, it depends upon an interpretation of Section 100 of the Code of Civil Procedure. Under Sub-section (4) of Section 100 of the Code, the High Court on being satisfied as to any substantial questions of law being involved in the case, shall formulate those questions and under Sub-section (5) of the said section, the appeal has to be heard on the questions so formulated. The proviso to said Sub-section (5), however, clearly lays down that the power of the Court to hear the appeal on any other substantial question of law though not formulated by it is not taken away and the Court may hear the appeal on other grounds if it is satisfied that the , case involves such questions. Apart from the aforesaid provision in the Code, the provision of Order 41, Rule 11 of the old Code before amendment, which is in pari materia with the present provision of Order 41, Rule 11 has been considered by several Courts in this country and the view taken is that it is not open to a Judge hearing an appeal under Order 41, Rule 11 to admit the same and at the same time to restrict the grounds on which the appeal is to be heard.
In the case of Krishnaji Shrinivas Jalyadi v. Madhusa Appansa Ladaba, A. I. R. 1943 Bombay, 207 (F. B. ), Beaumont, C.J., speaking for the Court held :
''...It seems to us that if an appeal is severable it is open to the Judge, hearing the appeal under R. 11, to dismiss it in part and admit it in part ; just as at the final hearing the Court may dismiss the appeal in part and allow it in part. For instance if an appeal related to two survey numbers which are held under distinct titles, we do not see any objection to the Court dismissing the appeal as to one of the survey numbers, and directing notice to issue as to the other 6urtey number. But we agree with the views of the Calcutta High Court expressed in Lukhi Narain v. Sri Ram Chandra, (1911) 11 I. C. . 212 and Janaki Nath Hore v, Prabhasini Dasee, (1915) 43 Cal, 178 that it is not open to a Judge hearing an appeal under R. 11 of 0. 4l to admit it and at the same time to restrict the grounds on which the appeal is to be heard. ......'
In the case of Rekha Thakur v, Ramnandan Rai and Anr., A. I. R. 1936 Patna, 7, it was held :
'...there is no provision in the Code of Civil Procedure enabling the Court of appeal to pass an order partly admitting and partly dismissing the appeal and I think that in the present state of the law, it must be held that an appeal cannot be admitted on a limited ground only, but that once it is admitted it has to be heard as a whole. ...'
In this view of the matter, the learned counsel for the appellant was permitted to urge the point with regard to the applicability of the. amended provisions of the Orissa Education Act notwithstanding the order of this Court dated 18. 4. 1979 restricting the admission of the appeal only to the effect whether the teacher could be deemed to have been reinstated from 12. 12. 1974 and not 12. 11. 1974.
9. So for as the question of applicabity of Section 7 of Orissa Act 17 of 1974 as concerned, Mr. Misra's contention is bassed on the ground that the plaintiff incurred the liability of being discharged from service under Article 287 of the Education Code by not making any application for extension of leave after 5. 10. 1973 and, therefore, the Managing Committee passed its resolution as per Ext. J. dated 5. 10. 1973 in accordance with rules Such an order of termination would not attract the provision of Section 7 of Orissa Act 17 of 1974. In support of his aforesaid submission, he placed reliance on two decisions of this Court reported in 1976(2) S. L R., 141 (Purnananda Beurs v. State of Orissa represented by the Secretary to Government of Orissa in the Planning & Co-ordination Department, Bhubaneswar and Ors.), and 1977(2) S. L. R., (The Managing Committee of Bhagabati Middle English School v. Baikunthanath Mohapatra and Ors.). The word 'termination' has not been defined in the Orissa Education Act Section 7 of Orissa Act 17 of 1974 is quoted hereinbelow in extenso :
7. Savings in respect of past cases-
(1) Notwithstanding anything in any judgment, decree or order of any Court, but subject to the provisions hereinafter contained, the termination of the services of any teacher of an aided educational institution as defined in the principal Act, made after the 3rd May, 1972, and before the date of commencement of this Act, shall, if made without the approval of the Director of Public Instruction (Higher Education) in the case of a College teacher and of the Director of Public Instruction (Schools) in the case of school teacher, be inoperative.
(2) The managing committee or the governing body of the concerned institution shall refer the case of the said teacher to the Director of Public Instruction (Higher Education) or the Director of Public Instruction (Schools), as the may be, within one month from the date of commencement of this Act for obtaining his, approval and thereupon the provisions of Section 10-A of the principal Act as amended by this Act shall, mutatis Mutandis apply :
Provided that where the managing committee or the governing body, as the case may be, fails to make a reference in accordance with this Sub-section, the order of 'termination of the services of the teacher shall become void and the teacher shall be deemed to have been reinstated in service with effect from the day following the date of expiry of the aforesaid period of one month.
(3) Where any such termination as is referred to in Sub-section (1) was made with approval of the Director of Public Instruction (Higher Education) or the Director of Public Instruction (Schools), as the case may be the concerned teacher may prefer an appeal to the Tribunal constituted under the principal Act as amended by this Act within one month from the date of constitution of the Tribunal.
(4) Where, on a reference made under Sub-section (2) the Director refuses to accord approval and no appeal is preferred to the Tribunal against the order of refusal, the concerned teacher shall be reinstated with effect from the date of such order.
(5) For removal of doubt it is hereby declared that on re-instatement, a teacher shall not he entitled to any emoluments for the period intervening between the date of termination of his service and the date on which he is reinstate 1 but the said period shall be counted towards service.'
This provision was introduced by tray of amendment to put a control over the whimsical action of the managing committee. The word 'termination' in the ordinary parlance would mean, to put an end to the service's of the employee by a positive action on the part of the employer. The two cases relied on by Mr. Misra in my view have no application to the facts of the present case. The case of Purnananda Beura (1976 (2) S. L. R, 141, is not at all on the paint. The ratio of the other case reported in 1977 (2)S. L. R., 37 is that superannuation of an employee does not amount to termination of his services. So also, where a post is created and an appointment is made to such a post clearly indicating the two termini of service, it would not be a case of termination to attract the amended provisions of the Orissa Education Act, extracted earlier. But in the present case, it is neither a case of superannuation nor a case of the post being created for a fixed period. In that view of the matter, it is difficult to accept the contention of Mr. Misra, the learned counsel for the appellant, that the order of the managing committee terminating the services of the plaintiff under Ext-J does not amount to termination. In my view, the said order of termination attracts the provisions of Orissa Act 17 of 1974 and, therefore, the said termination being prior to the said provision coming in to force, and not being made with the approval of the competent authority, becomes inoperative as the managing committee has admittedly not referred the case of the said teacher to the Director of Public Instruction (Schools), within one month from the date of commencement of the said Act for obtaining his approval. Consequently, the plaintiff becomes entitled to be deemed to be reinstated in service with effect from the day following the date of expiry of the period of one month from the commencement of the Act in accordance with the proviso to Section 7(2). The said Act having come into force with effect from 11. 11. 1974, the deemed date of reinstatement would be 12. 12. 1974. The order of the lower appellate Court to that extent is madified and it is held that the reinstatement of the plaintiff must be with effect from 12. 12. 1974.
10. Subject to the aforesaid modification, there is no merit in this second appeal which is accordingly dismissed, but there would be no order for costs of this appeal.