The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.321 of 2022 State of Odisha …. Appellant Chakradhar Prasad Gantayat …. Respondent -versus- Advocates appeared in this case: For Appellant For Respondent : :
Legal Reasoning
dated 02.12.2021 passed by a learned Single Judge of this Court in W.P.(C) No.10919 of 2021, whereby the learned Single Judge has disposed of the writ petition filed by the respondent in the following terms:- “*** 20. In view of the factual and legal matrix, as discussed above, this Court is of the considered view that if the petitioner has been exonerated from the charges leveled against him in a disciplinary proceeding, which was initiated on the selfsame facts, merely because the Page 1 of 6 vigilance case is pending, though the standard of proof in both the cases are different and even though the standard of proof in case of disciplinary proceeding is lower than the vigilance case, but that ipso facto cannot deny the petitioner the benefit of promotion, which has been kept in sealed cover. Consequentially, this Court direct the opposite party to open the sealed cover and extend the benefit of promotion to the petitioner, if he has otherwise entitled to get the same, with all consequential benefits with effect from the date his immediate junior has been given promotion to the next higher post. The above exercise shall be done within a period of three months from the date of communication of this Judgment.” 2. It has been submitted on behalf of the appellant that it is an admitted fact that a criminal case is pending against the respondent. A departmental proceeding was also initiated against him concerning the charges which are the subject matter of the said criminal proceeding also. In the said departmental proceeding, the respondent has been exonerated of the charges. However, the criminal case is still pending. It is contended that it has been clearly laid down in a decision rendered by a Division Bench of this Court in the case of State of Odisha and another v. Joseph Barik; (2023) II ILR-CUT 361 that a government servant has no right to be considered for promotion during the pendency either of a departmental proceeding or a criminal proceeding or of both. He submits that the impugned decision rendered by the learned Single Judge is in conflict with the said Division Bench decision of this Court in the case of Joseph Barik (supra). 3. Learned counsel appearing on behalf of the respondent, on the other hand, has drawn this Court’s attention to the orders dated 05.07.2022, 29.07.2022, 28.10.2022, and 27.03.2023 passed by Page 2 of 6 this Court in the present appeal expressing concern over pendency of criminal case against the respondent since 2014. He has submitted that despite observations made by this Court, the trial has not been concluded and the respondent has been made to suffer in the matter of consideration his promotion on the sole ground of pendency of the criminal case. He has submitted that the case of the respondent is thus distinguishable from the case decided by this Court in the case of Joseph Barik (supra). He has also drawn our attention to the Odisha Civil Services (Criteria for Promotion) Rules, 1992 with a special reference to Rule-3 thereof to contend that the said provision does not bar grant of promotion on the ground of pendency of a criminal case. He has also submitted that the State has been selective in the matter of grant of promotion to its employees on the ground of pendency of criminal cases. Learned counsel for the respondent has also relied on an Office Memorandum dated 04.07.1995 to submit that the Authorities ought to have considered the respondent’s case for grant of ad hoc promotion. 4. In case of Joseph Barik (supra), a co-ordinate Bench of this Court has in no uncertain terms held that a government servant does not have a right to be considered for promotion during the pendency of either departmental proceeding or criminal proceeding. The said decision has been followed in a recent decision dated 06.03.2024 rendered in the case of The Principal Secretary, Panchayat Raj Department, Govt. of Odisha and others, in W.A. No.16 of 2024. The aforesaid Office Page 3 of 6 Memorandum dated 04.07.1995, reliance on which has been placed by the learned counsel for the respondent has been taken note of by this Court in the case of Joseph Barik (supra). It has been pointed out by the learned Additional Government Advocate appearing for the appellant-State that the said office Memorandum dated 04.07.1995 has subsequently been withdrawn vide Notification dated 29.04.2017 (Annexure-6 to the writ appeal). 5. Be that as it may, in view of the law laid down by the Division Bench of this Court in the case of Joseph Barik (supra), in our opinion, the impugned decision rendered by the learned Single Judge cannot be upheld which requires interference. 6. Accordingly, the impugned judgment dated 02.12.2021 passed by the learned Single Judge in W.P.(C) No.10919 of 2021 is set aside. This writ appeal is allowed. W.P.(C) No.10919 of 2021 is dismissed. 7. Interim order dated 17.05.2022 passed by this Court stands vacated. 8. Before we part with the present judgment, we too express our serious concern over the long pendency of the criminal case against the respondent which has resulted in the denial of consideration of his promotion, on that sole ground. The orders passed by this Court in the present writ appeal as regards criminal case speak for themselves and read as under: - Page 4 of 6 05.07.2022 “xxx xxx xxx 5. The Special Judge (Vigilance), Bhubaneswar is directed to decide the pending applications on the next date fixed i.e. 7th July, 2022 or within the next one week thereafter and proceed to post the case for consideration of framing of charges before the next date fixed before this Court.” 29.07.2022 “xxx xxx xxx 2. Mr. Khuntia states that pursuant to the orders passed by this Court on 05.07.2022, the learned Trial Court has framed the charges against the nominated accused on 11.07.2022 and the case has now been adjourned for leading of prosecution evidence, he prays for time to apprise the Court of the progress in the matter.” 28.10.2022 “xxx xxx xxx 3. Mr. L. Samantaray, when confronted with this apathy of the official witnesses prays for short adjournment to impress upon the I.O./Director Prosecution to ensure the presence and conclusion of the evidence of the official witnesses within next one and half month, failing which deterrent orders stopping the payment of salary may be liable to be passed. 4. List on 27th February, 2023. 5. Let the Special Judge (Vigilance), Bhubaneswar file a fresh report. He is also directed to pass appropriate orders to secure the presence of the cited witnesses so as to facilitate the early conclusion of the trial.” 27.03.2023 “xxx xxx xxx 4. The last report sent by the Special Judge, Vigilance, Bhubaneswar stated that the trial in TR Case No.50 of 2014 is still in progress. Only three prosecution witnesses had been examined till then. 5. A fresh report be called from the Special Judge, Vigilance, Page 5 of 6 Bhubaneswar as to the current status of the trial in TR Case No.50 of 2014. 6. The Court requests the trial court to conclude the entire trial on or before 1st July, 2023, and deliver judgment in the case on or before 1st August, 2023. The parties in the rial will cooperate with the trial Court to adhere to the above time schedule and not seek unnecessary adjournments. These directions are being been issued since the case in the trial court has been pending since 2014.” 9. Let a copy of this order be communicated to the learned Special Judge, Vigilance, Bhubaneswar forthwith. (Chakradhari Sharan Singh) Chief Justice (M.S. Raman) Judge MRS/Laxmikant Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 27-Mar-2024 14:11:46 Page 6 of 6
Arguments
Mr. M.K. Khuntia, Additional Government Advocate Mr. Sukanta Kumar Dalai, Advocate CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN JUDGMENT 20.03.2024 Chakradhari Sharan Singh, CJ. 1. The appellant-State of Odisha is aggrieved by the judgment