The High Court · 2024
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Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5465 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Sudam Charan Baliarsingh …. Petitioner -versus- State of Odisha and another …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. A. Swain, Advocate For Opposite Parties : Mr. D. Mohanty, A.G.A. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 2nd December 2024 B.P. Routray, J. 1. Heard Mr. A. Swain, learned Advocate for the Petitioner as well as Mr. D. Mohanty, learned Additional Government Advocate for the State-Opposite Parties. 2. The Petitioner, who served as ‘Sevak’ in Gugurumaha Residential Sevashram in Kotagarh Block of Kandhamal and presently as Asst. Teacher in Govt. (SSD) High School at Jaleshpatta, Kandhamal was proceed with departmentally and inflicted with W.P.(C) No.5465 of 2020 Page 1 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 punishment of censure, withdrawal of one increment without cumulative effect and the period of suspension was treated as leave. The order of punishment dated 11.12.2017 at Annexure-5, imposed by
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the departmental authority, was challenged by the Petitioner in appeal. The appellate authority in it’s order dated 30.09.2019 at Annexure-7 dismissed the appeal confirming the order of punishment. The order of punishment and dismissal of appeal under Annexure-5 & 7 respectively are challenged in present writ petition. 3. It is submitted that, the Petitioner has been acquitted for the self- same charges in the criminal court by the learned S.D.J.M., Baliguda in G.R. No.190/2014 vide judgment dated 09.04.2015. Accordingly, the departmental proceeding, which is for self-same charges, as in the criminal court, the order of punishment passed subsequent to the judgment of the criminal court is unsustainable in the eye of law. 4. The law is well settled that even after acquittal of the Petitioner by the criminal court the same would not preclude the disciplinary authority from proceeding against him and to take action, if it is otherwise permissible. In Ajit Kumar Nag vs. General Manager (PJ), W.P.(C) No.5465 of 2020 Page 2 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 Indian Oil Corpn. Ltd., Haldia and others, (2005) 7 SCC 764, it is held as follows:- “11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused ‘beyond reasonable doubt’, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ‘preponderance of probability’. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore,
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unable to uphold the contention of the appellant that since he was W.P.(C) No.5465 of 2020 Page 3 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.” 5. In Depot Manager, A.P. State Road Transport Corporation vs. Mod. Yousuf Miya and others, (1997) 2 SCC 699, the Hon’ble Supreme Court has observed as follows:- “8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of W.P.(C) No.5465 of 2020 Page 4 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings.” 6. In Corporation of the City of Nagpur, Civil Lines, Nagpur and another vs. Ramachandra and others, (1981) 2 SCC 714, it is held as follows:- “6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction [discretion] in any way fettered.” (emphasis supplied) W.P.(C) No.5465 of 2020 Page 5 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 7. In R.P. Kapur vs. Union of India and another, AIR 1964 SC 787, a Constitution Bench of the Hon’ble Supreme Court have observed that, “If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable.” 8. In Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679, it is held as follows:- “34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, ‘the raid conducted at the appellant’s residence and recovery of incriminating articles therefrom’. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial W.P.(C) No.5465 of 2020 Page 6 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 pronouncement with the finding that the ‘raid and recovery’ at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” 9. Taking note of afore-stated decisions and other cases also, the Supreme Court in G.M. Tank vs. State of Gujarat and others, (2006) 5 SCC 446 have observed as follows:- “30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any W.P.(C) No.5465 of 2020 Page 7 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply, We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” 10. In Ram Lal vs. State of Rajasthan and others, (2024) 1 SCC 175, the Supreme Court have observed as follows:- “25. Expressions like “benefit of doubt” and “honorably acquitted”, used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of W.P.(C) No.5465 of 2020 Page 8 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used. xxx xxx xxx 27. We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra). ” 11. In the case at hand, the Petitioner while serving as ‘Sevak’ was charged for commission of offences under Sections 143/353/294/506/ 149, I.P.C. read with Section 3 f the Odisha Medicare Service Person and Medicare Service Institution (Prevention of Violence and Damage to Property) Act, 2008 as per the FIR dated 08.06.2014 of Kotagarh Police Station. He stood his trial for such criminal charges stated above and in conclusion of trial, depending on the evidences of four witnesses, namely, Amaresh Jagdev (P.W.1), Gopal Krushna Behera (P.W.2), Kunal Chandra Ranasandha (P.W.3) and Kailash Chandra Nayak (P.W.4) have directed for acquittal of the Petitioner from the W.P.(C) No.5465 of 2020 Page 9 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 criminal charges. The specific finding of the learned S.D.J.M., Baliguda is as follows:- “7. So, in absence of independent corroboration and cogent evidence this court is constrained to opine that the prosecution has failed to prove its case against the accused persons beyond the shadow of all reasonable doubt. So, the accused persons are found not guilty U/s.143/353/294/506 of the I.P.C. r/w Sec.149 of I.P.C. and 3 of M.M.S(P)V.D.P. Act and they are acquitted from the said offences U/s.248(1) of the Cr.P.C. Accused persons are on bail. They are discharged from their bail bonds and they be set at liberty forthwith.” 12. It needs to be mentioned here that, the judgment of acquittal of the learned S.D.J.M., Baliguda was passed on 09.04.2015. Prior to that, upon intimation sent by the Police regarding registration of Kotagarh P.S. Case No.26/14 to the authority concerned, the Collector, Kandhamal as per Order No.3670, dated 8.11.2014 issued memorandum of charges in terms of the OCS (CC&A) Rules, 1962 against the Petitioner. The charges as delineated in the memorandum under Annexure-1, are as follows:- “ARTICLE OF CHARGES Sri Sudam Charan Baliarsingh, Sevak, Gugurumaha Residential Sevashram has committed certain irregularities for which the following article of charges are framed against him. W.P.(C) No.5465 of 2020 Page 10 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 1. Gross Misconduct. 2. Violation of Govt. Servants conduct Rules.” IMPUTATOIN OF MISCONDUCT “STATEMENT OF IN SUPPORT OF THE ARTICLES OF CHARGES FRAMED AGAINST SRI SUDAM CHARAN BALIARSINGH, SEVAK, GUGURUMAHA RESIDENTIAL SEVASHRAM UNDER KOTAGARH BLOCK Name & Designation of the Officer to be proceeded against:- Sri Sudam Charan Baliarsingh (Sevak), Gugurumaha Residential Sevashram Under Kotagarh Block Pay Band: Group : P.B.-1- (Grade Pay Rs.2400/-) Group-C Whereas, Sri Sudam Charan Baliarsingh, Sevak, Gugurumaha Residential Sevashram under Kotagarh Block has committed certain irregularities for which following charges are framed against you under Rule 15 of the O.C.S. (C.C. & A) Rules, 1962. IMPUTATION CHARGES That, it was reported by IIC, Kotagarh P.S. that Sri Sudam Charan Baliarsingh, Sevak, Gugurumaha Residential Sevashram has arrested on 8.6.2014 at 8.45 P.M. vide Kotagarh P.S. Case No.26/14 U/s.143/332/353/294/506/149 IPC/3, the Odisha Medicare Service Persons and Medicare Service Institution (Prevention of Violence and Damage to Property) Act, 2008, forwarded to the Hon’ble Court of S.D.J.M., Baliguda and remained in Jail custody for more than 48 hours. The arrest and detention in jail custody of Sri Baliarsingh for more than 48 hours invites disciplinary action under Rule-93 of Odisha Service Code and Rule-12(2) of O.C.S. (CC&A) Rules, 1962. Being a bonafide Govt. servant involvement in violence at public places is highly offensive. W.P.(C) No.5465 of 2020 Page 11 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 Thus, you are charged for Gross Mis-conduct and violation of Govt. servants conduct rules.” 13. In the criminal proceeding, the charges for afore-stated offences were summarized to formulate the points for determination in the judgment of the learned S.D.J.M., Baliguda, which speaks as follows:- “4. The points which need determination in this case are as follows: (a) Whether on 08.06.2014 at 6.00 P.M. at Kotagarh the accused persons were members of an unlawful assembly, and common object of such assembly namely to commit offence ? (b) Whether on above stated date, time and place the accused persons in prosecution of their common object used criminal force to the informant with intent to prevent him discharging his duty ? (c) Whether on above stated date, time and place the accused persons in prosecution of their common object criminally intimidated the informant with injury to his person with an intention to cause alarm in his mind ? (d) Whether on above stated date, time and place the accused persons in prosecution of their common object uttered obscene words in or near a public place to the annoyance of others ? (e) Whether on above stated date, time and place the accused persons tried to cause violence at Kotagarh hospital ?” 14. A cumulative reading of the charges in the criminal proceeding and the charges in the disciplinary proceeding are found identical and W.P.(C) No.5465 of 2020 Page 12 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 almost same. In the process of enquiry in the disciplinary proceeding, as seen from Annexure-3, two witnesses, namely, Dr. Amaresh Jagdev and Manoranjan Sahu were examined. The Inquiry Officer along with the statement of these two witnesses also took into consideration the report of the Police in Kotagarh P.S. Case No.26/14 in arriving at his finding that the charge of gross misconduct as well as violation of Govt. Servant Conduct Rules by the Petitioner have been established. It is further seen from the copy of the enquiry report under Annexure-3 that, the witnesses namely Manoranjan Sahu has stated that the alleged involvement of the Petitioner and damage of property of Government Hospital, Kotagarh is not known to him. 15. From the above analysis, it is seen that Dr. Amaresh Jagdev was the common witness in the departmental proceeding as well as in the criminal proceeding, who according to learned S.D.J.M., Baliguda is the victim of the offences and he did not disclose anything regarding the alleged occurrence. As seen from the enquiry report in the departmental proceeding, said Amaresh Jagdev, the Medical Officer, also did not say anything against the Petitioner nor regarding the occurrence. In the enquiry report, it is clearly reflected that the Medical Officer (Amaresh Jagdev) in his deposition has stated that the amicable W.P.(C) No.5465 of 2020 Page 13 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 settlement of both the delinquent officer and the Medical Officer was made before the learned S.D.J.M., Baliguda prior to declaration of the judgment for which none of the witnesses disclosed regarding the alleged occurrence and all remained silent. It needs to be mentioned here that, nothing has been produced or revealed from the judgment of learned S.D.J.M., Baliguda regarding any amicable settlement between the parties. 16. Thus as seen from the above narration of facts, the witnesses have neither said anything in the criminal proceeding nor stated anything in the departmental proceeding. The evidence taken in the criminal proceeding as well as in the departmental proceeding are of similar nature. Therefore, when the charges in the criminal proceeding and departmental proceeding are identical and the evidences brought on record in both proceedings are of similar nature, the principles decided in the case of Capt. M. Paul Anthony (supra) and confirmed in G.M. Tank (supra) are found applicable in the present facts of the case. Accordingly, the impugned order of punishment inflicted in the Petitioner as per order dated 11.12.2017 (Annexure-5) is liable to be set aside. The appellate authority of course without discussing anything on the merits of the materials produced before the disciplinary W.P.(C) No.5465 of 2020 Page 14 of 15 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 16:41:27 authority in course of the enquiry, has dismissed the appeal to confirm the impugned order of punishment, and as such the same is also liable to be set aside. 17.
Decision
In the result, the impugned orders under Annxure-5 & 7 are set aside and the Petitioner is granted all consequential service and financial benefits thereof. 18. The writ petition is disposed of as allowed. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.5465 of 2020 Page 15 of 15