The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7328 of 2013 State of Odisha & Another … Petitioners Mr. Ishwar Mohanty, Addl. Standing Counsel -versus- Malaya Kishore Nayak …. Opposite Party Mr. G.R. Sethi, Advocate CORAM: THE CHIEF JUSTICE JUSTICE M. S. RAMAN
Decision
ORDER 16.02.2023 Order No. 25. 1. The State has filed this petition to challenge an order dated 17th May, 2012 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack (OAT) in O.A. No. 503(C) of 2012. On 11th September, 2013, this Court stayed operation of the impugned order directing expunging of the adverse entries made in the Opposite Party’s Confidential Character Rolls (CCR). The OAT held that non- consideration of the case of the Opposite Party for promotion, from the date his junior was promoted, is arbitrary. The Director General of Police was directed to grant promotion to the Opposite Party to the rank of Inspector of Police with effect from 29th November, 2003 the date on which his junior was so promoted. 2. The background facts are that the Opposite Party was appointed as Sub-Inspector of Police (SI) on 31st January, 1990. For the period from 30th May, 2002 to 31st March, 2003, the Superintendent of Police (SP), Sambalpur recorded adverse remarks in the CCR of the Opposite Party while the latter was serving as SI. It is stated that Page 1 of 5 these adverse remarks were communicated to him on 18th May, 2003. The Opposite Party then submitted a representation to the DIG of Police Northern Range, Sambalpur. The representation was rejected by an order dated 2nd August, 2003 of the DIG. On this basis, the Opposite Party was found unsuitable for promotion by the Central Selection Board (CSB) held on 12th November, 2003. 3. The Opposite Party preferred an appeal to the DG of Police on 25th July, 2004. This appeal was rejected on 21st March, 2005. Then a memorial was submitted to the Government on 15th April, 2008 which was also rejected on 27th May, 2009. It is stated that the said order dated 27th May, 2009 was not challenged by the Opposite Party in any forum. 4. The Opposite Party filed O.A. No.17(S) of 2008 before the OAT, Bhubaneswar for a direction that his representation regarding the adverse entries in the CCR should be disposed of an order dated 6th December, 2008. The OAT directed an appropriate order to be passed within a period of three months on his representation. On 1st July, 2009, the DG of Police passed a consequential order rejecting the representation of the Opposite Party. The order dated 1st July, 2009 was again not challenged by the Opposite Party. 5. Meanwhile, during the pendency of the proceeding, the Opposite Party was promoted to the rank of Inspector with effect from 30th May, 2011. The reason for he is not being promoted from 2003 was on account of the pendency of the Department Proceedings Nos.11 of 2003 and 5 of 2006. In Departmental Proceeding No.11 of 2003, the Opposite Party was exonerated on 10th July, 2006 by the Appellate Authority. In the Departmental Proceeding No.5 of 2006, the punishment of ‘black mark’ was set aside by the Revisional Page 2 of 5 Authority by the order dated 10th June, 2009. On the above basis, it was contended by the Opposite Party before the OAT that the denial of promotion to the Opposite Party from 2003 onwards was no longer justified since he had been completely exonerated in the departmental proceedings. 6. A perusal of the impugned order dated 17th May, 2012 of the OAT reveals that the case of the Opposite Party was that the material on the basis of which the departmental proceedings were initiated was no different from the material that formed the basis of the adverse entries in the CCR and, therefore, exoneration in the departmental proceedings would automatically result in expunging the adverse entries in the CCRs. 7. On the other hand, in the additional affidavit dated 7th December, 2021 filed by the State authorities, it was claimed that the material on which the CCR was based was different from the one that formed part of the disciplinary enquiry. At the hearing, on 8th December 2021, this Court permitted the learned Additional Government Advocate to file a further affidavit explaining the difference in the materials. 8. Pursuant thereto an affidavit has been filed on 11th March, 2022 by the Additional Superintendent of Police, Cuttack. It is stated therein that in connection with the handing of P.S. Case No.11 dated 20th January, 2003 registered in the Katarabaga Police Station under Section 302/34 of I.P.C. and Sections 25 and 27 of the Arms Act, the Opposite Party did not take any sincere steps and did not collect proper intelligence as result of which the accused person could not be arrested for more than three months. In the meanwhile, a counter case took place and resulting a registration of Katarbaga P.S. Case Page 3 of 5 No.63 dated 24th April, 2003 under Section 302/34 I.P.C. It was alleged that even after this, the Opposite Party did not take effective steps for arrest of the accused and this continued till his relinquished the charge of Rengali Outpost on 20th May, 2003. 9. It is stated that the entries in the CCR, however were based on “personal confidential information”. There, it was noted that the work of the Opposite Party was ‘poor’, and his attention to details in investigation, supervision and other works was ‘superfluous’. He was stated to be ‘indifferent’ and it was stated that he “passes responsibility to others”. It is, on this basis, that it was contended that the entries in the CCR do not automatically get wiped out because of exoneration in the disciplinary proceedings. 10. Learned counsel for the Opposite Party, however, drew attention to the charges in the disciplinary enquiry and submitted that they formed the basis for the entries in the CCR as well. He submitted that with the Opposite Party having been totally exonerated in both the disciplinary enquiries, there was no valid basis for the retention of the adverse entries in the CCR. 11. The Court is unable to agree with the above contention. Indeed, the entries in the CCR appear to be based on a consideration of a variety of factors. The copy of the CCR placed on record reveals that the adverse entries therein were not be based exclusively on the subject matter of the disciplinary proceedings instituted against the Opposite Party. On the other hand, a careful perusal of the entries would show that while there is mention of the criminal cases noticed hereinbefore, the adverse entries do not necessarily relate to that factor. In other words, the entries appear to have been made on the basis of the personal confidential information. Page 4 of 5 12. A perusal of the impugned order of the OAT, however, reveals that merely because the Opposite Party stood exonerated in the disciplinary enquires, it was concluded by the OAT that there was no justification for retention of the adverse entries in the CCR. This was clearly an erroneous approach since in the facts of the present case, it appears that one consequence does not automatically flow from the other. In other words, the exoneration of the Opposite Party in the disciplinary proceedings does not result in erasing the adverse entries in the CCR which appear to have been based on independent material and information available to the Department. 13. For the aforementioned reasons, the Court is unable to sustain the impugned order of the OAT and it is, accordingly, hereby set aside. 14. The writ petition is allowed. No order as to costs. Chief Justice (Dr. S. Muralidhar) Judge (M. S. Raman) Aks Page 5 of 5