Misc. Case No. 11 of 2022 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 2725 of 2023 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Biraja Prasad Acharya ...… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : Mr. T.Nanda, Advocate, with Mr. S.K.Hota, Advocate For Opp. Party : Mr. S.N.Pattnaik Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 26th July, 2024 The petitioner has filed this writ application with the following prayer: “It is therefore prayed that this Hon’ble Court may graciously be pleased to consider the facts stated in the writ petition, admit the same, issue Rule NISI calling upon Opp. Parties to show cause:- Page 1 of 13 (i) Why the order dtd. 30.06.2022 passed by the O.P.No.3 Collector, Bolangir in Misc. Case No. 11 of 2022 under Annexure-6 shall not be quashed. (ii) Why the Office Order No. 883 dtd 17.01.2023 passed by the Director, Special Projects, Panchayati Raj & D.W. Department- cum-Appellate Authority in Appeal Case No. 11 of 2022 under Annexure-9 shall not be quashed. (iii) Why the disengagement order vide Office Order No. 2890/DRDA dtd. 11.08.2017 passed by the O.P. No.3 Collector, Bolangir against the petitioner under Annexure-4 shall not be quashed. (iv) Why the petitioner shall not be reinstated into service and why he shall not be allowed to continue as GRS of Barkani G.P. or any other G.P. in the district of Bolangir with all consequential service and financial benefits. If the Opp. Parties fail to show cause or show insufficient cause then the rule may kindly be made absolute. And/or pass any other order/orders, direction/directions writ/writs as this Hon’ble Court may deem just and proper; And for which act of kindness, the petitioner as in duty bound, shall ever pray. 2. The facts of the case, briefly stated, are that the petitioner being duly selected by the District Level Selection Committee was engaged as Gram Rozgar Sevak (GRS) of Barkani Gram Panchayat under Bolangir block in the district of Bolangir vide order dated 28.11.2006 of the Collector. He joined as such on 05.12.2006. The engagement was contractual in nature and the petitioner executed an agreement with the Sarpanch at the time of his joining. While working as such a news item was published in the newspaper “Prameya” alleging misappropriation of money of beneficiaries under PMAY Page 2 of 13 Scheme and of retention of ATM cards and passbooks of the beneficiaries by the petitioner. The Project Director, DRDA issued a show cause notice on 21.07.2017 calling upon the petitioner to reply to the same. The petitioner submitted his reply on 24.07.2017 denying the allegations as false, fabricated and motivated. The Collector, being dissatisfied with the reply submitted by the petitioner, disengaged him vide order dated
Legal Reasoning
11.08.2017. The petitioner challenged such order before the erstwhile Odisha Administrative Tribunal, Bhubaneswar in O.A. No. 1392 of 2017 which, after its abolition was transferred to this Court and registered as W.P.(C). OA No. 1392 of 2017. By order dated 21.02.2022, this Court quashed the order of disengagement passed by the Collector and remitted the matter to him to conduct inquiry afresh by providing due opportunity of hearing to the petitioner. Pursuant to such order, the Collector registered Misc. Case No. 11 of 2022 and caused an inquiry. After hearing the parties, he held that the order of disengagement of the petitioner was Page 3 of 13 appropriate. The petitioner again challenged such order before this Court in W.P.(C). No. 28822 of 2022 which
Decision
was disposed of by order dated 11.11.2022 granting him liberty to approach the appellate authority. The petitioner preferred an appeal before the Director, Special Projects, being Appeal Case No. 11 of 2022. Ultimately, by order dated 17.01.2023 the appeal was dismissed. It is stated that the order of the Collector as well as the appellate authority are bad in law having been passed without any concrete evidence. On such facts, the petitioner has approached this Court in the present writ application. 3. Counter affidavit has been filed on behalf of the State Opposite Parties. It is stated that the disengagement of the petitioner from the job was based on a field inquiry report submitted by the BDO on 17.07.2017. However, pursuant to order passed by this Court, the Collector considered the matter afresh and caused an inquiry through APD (Admin), DRDA and BDO. Such inquiry revealed that the petitioner was involved in illegal transactions in the Bank Accounts of the Rural Housing Page 4 of 13 beneficiaries. Moreover, the Collector observed that the petitioner had not submitted proper or satisfactory reply regarding the transactions in question. That apart, the petitioner at the time of hearing of the appeal admitted that he had possessed the ATM cards and bank passbooks of the beneficiaries and made transactions from those bank accounts to his own account. It was specifically averred that, as per the joint inquiry report, a sum of Rs. 25,000/- was found to have been transferred to the account of the petitioner out of the amount credited to the account of the beneficiary Chandramani Kaunar. Similarly, Rs. 40,000 and Rs. 5,000/- out of the same amount were also transferred to his account. That apart, there were several ATM withdrawals from the account of the beneficiaries either on the day of the deposit or the next day. 4. The petitioner filed a rejoinder to the counter mainly reiterating the plea that the money transferred to the account of the beneficiaries was utilized for them by constructing houses as provided for in the scheme. The Page 5 of 13 documentary proof regarding the construction of the houses has also been enclosed to the rejoinder. 5. Heard Mr. T. Nanda, learned counsel for the petitioner and Mr. S.N.Pattnaiak, learned Additional Government Advocate for the State. 6. Mr. Pattnaik would argue that the appellate authority wrongly observed that the petitioner had admitted that he had possessed the ATM cards and bank passbooks of the beneficiaries and made transaction from those bank accounts to his own account through ATM cards. The petitioner had never admitted any such things. Mr. Nanda further argues that the entire allegations are based on newspaper reports which were designed to malign the petitioner. Even otherwise, there is no concrete proof of the so-called misappropriation of the amounts by the petitioner. 7. Mr. Pattnaik, learned State counsel would argue that the appellate authority, being a senior Government Officer, cannot be expected to make an observation without any basis or falsely as no malafides can be Page 6 of 13 attributed to him. On merits, Mr. Pattnaik would argue that the bank statements examined by the inquiry committee clearly show that certain amounts were transferred from the account of the beneficiaries to the petitioner’s account. Since the petitioner could never explain the above transaction, an adverse inference has been rightly drawn against him. 8. The plea taken by the petitioner that he had never made any admission regarding the transaction before the appellate authority, as stated in the impugned order as to what transpired during the hearing of the appeal, is something that this Court cannot obviously go into. It is well settled that in case an erroneous observation is found to have been made by a Court/forum/ authority in an order then the person affected is required to first approach the said Court/forum/authority for rectification or modification or expunction of such observation, as the case may be. If such an exercise is not undertaken by the person complaining of erroneous observations and there is no material to show that the concerned authority was Page 7 of 13 inimically disposed towards the complainant or was actuated with malafides, the observations in question cannot be ignored. In this regard, the Supreme Court in the case of State of Maharashtra vrs. Ramdas Shrinivas Nayak & Another1 held as follows: for the respondents “4. When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation.” We are bound to accept the statement of the Judges recorded judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement is well-settled in their 1 (1982) 2 SCC 463 Page 8 of 13 made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. 8. So the Judges’ record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.” In instant case, the petitioner has admittedly not sought for expunction of the observation by objecting to the appellate authority in the first place. He has also not been able to demonstrate that the appellate authority was actuated with any malafides. Under such circumstances, this Court finds considerable force in the submission of learned State counsel as referred above and therefore, the plea taken by the petitioner that he had not made any such admission is unacceptable. 9. Coming to the merits of the allegations, it has been alleged that the petitioner kept the ATM cards and bank passbooks of two rural housing beneficiaries namely, Chandramani Kuanr and Sudan Mahakur. Further Page 9 of 13 different amounts were transferred from the accounts of the said beneficiaries to his account. The allegations have been crystalized in the following words under paragraph 13 of the counter affidavit. “ xxxx As per the joint enquiry reports of Addl. EO, Zilla Parishad, Bolangir and Block Development Officer, Bolangir beneficiary Chandramani Kuanr, S/o- Tankadhar Kuanr of village Narayanpur under Barkani GP had opened Ac. No. 34388247933 at ADB Bank, Bolangir. On 10.11.2014 he had registered his mobile phone and on issued with ATM card. On dated 12.11.2014 was verification of bank statement it is seen that on dated 19.06.2017 Rs.35,000/- was credited to his account towards RH instalment through PFMS. On the same day Rs. 10,000/- was withdrawn from his account through ATM & Rs.25,000/- was transferred to the a/c no 30883924570 of Biraja Prasad Acharya. Copy of transaction sheet of the bank is annexed herewith and on dated marked as ANNEXURE-D/3. Similarly 27.06.2017, Rs.45,000/- was credited to the account of Sri Chandramani Kuanr, beneficiary towards RH instalment. On the same day Rs.40,000/- and Rs.5,000/- respectively were transferred to the a/c no 30883924570 of the Petitioner. Copy of statement of transaction is annexed herewith and marked as ANNEXURE-F/3. Beneficiary Suresh Suna has opened an account at Central Bank of India bearing No. 3210350727. He had not registered his mobile and issued ATM cards on 21.07.2017 and 16.07.2018. It is seen that the ATM was issued to the beneficiary just after deposit of the 1 RH instalment to his account. On verification of his bank statement it is seen that, most of the withdrawals have been made through ATM just after deposit of the RH instalments to his account Copy of Customer Account Ledger Report is annexed herewith and marked as ANNEXURE-F/3. Beneficiary Sudam Mahakur had opened an account in United Bank of India which is now merged with Punjab National Bank bearing account no. 1409010139120. He has registered his mobile on dated 20.02.2017 and issued ATM card on dated 20.02.2017. His 1st instalment was deposited on dated 09.02.2017. On verification of his bank statement it is observed that most of the withdrawals have been made in ATMs of Balangir Municipality area. Further, most of the withdrawals are in the same day of deposit of the RH installments or on the very next day of deposit. Besides these the beneficiaries of Page 10 of 13 the RH scheme have submitted written statement of their allegations.” In reply to the above averments of the Counter, the petitioner in his rejoinder has replied in the following words; “ 8. That, in reply to the averments made in para-13 of the counter affidavit it is respectfully submitted here that the enquiry conducted at the behest of the Opp. Parties is also faulty and half- hearted because the enquiry report does not reveal the statements of the beneficiaries in question and other villagers regarding utilization of their money and completion of their houses under housing scheme. Moreover, there is no correlation between ATM withdrawals by the beneficiaries and deposit in the account of the petitioner”. A bare reading of the reply of the petitioner quoted above makes it clear that it is simply a general denial and does not in the least answer the specific allegations of transfer of different amounts from the bank accounts of the beneficiaries to his account. This Court has also perused the bank statements of the beneficiaries in order to have subjective satisfaction regarding proof of the allegations. Said statements have been enclosed to the counter under Annexure-D/3, E/3 and F/3. It is seen that different amounts have been transferred from the accounts of both Chandramani Kuanr and Suresh Suna to the petitioner’s account bearing No. 30883924570. The Petitioner has Page 11 of 13 not offered any explanation for such transfer of money to his account. So even ignoring the fact of possession of the ATM cards and bank passbooks of the beneficiaries and on multiple ATM withdrawals, there is clear proof of transfer of several amounts to his bank account from the accounts of the beneficiaries. In the considered view of this Court, this by itself proves the allegations. The plea that the houses of the beneficiaries have been completed does not cut much ice because its nobody’s case that the houses were not constructed. Rather the specific case of the authorities is that the house allotted to the beneficiaries under the Rural Housing Scheme some amounts were misappropriated by the petitioner. This is clearly proved by the bank transfer as referred above. 10. Therefore, even ignoring the admission of guilt by the petitioner during hearing of the appeal, this Court finds enough materials otherwise to prove the allegations. The petitioner obviously had no business to have any money transferred from the beneficiaries’ account to his own account and this can only be for an ulterior purpose. Page 12 of 13 11. For the foregoing reasons therefore, this Court finds that both the Collector as well as the appellate authority have rightly found the petitioner guilty of misappropriation and for which, this Court is not inclined to interfere with the impugned order. Resultantly, the writ application being found to be devoid of merit is therefore, dismissed. There shall be no order as to costs. ……..………………….. Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 31-Jul-2024 13:07:34 Page 13 of 13