The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.15654 of 2016 In the matter of an application under Articles 226 and 227 of the Constitution of India. ---------------------------- Laxmidhar Pal ....... Petitioner -Versus- State Pollution Control Board Odisha and another ....... Opp. Parties For Petitioner : Mr. U.K. Samal, Advocate For Opp. Party No.1: Mr. G. Rout, A.S.C. For Opp. Party No.2: Mr. S.K. Padhi, Sr. Advocate ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA JUDGMENT 09.12.2022 S.K. MISHRA,J. 1. The Petitioner, who was working as Environmental Scientist in the Office of the State Pollution Control Board, Odisha has preferred the present Writ Petition for quashing of the Departmental Proceeding initiated against him vide Memorandum dated 21.07.2012, as at Annexure-1, with an alternate prayer to keep the Departmental Proceeding pending till disposal of the criminal case. 2. The factual matrix of the case at hand is that one
Legal Reasoning
this Court in the case of Bhagirathi Nayak Vrs. Odisha State Civil Supply Corporation Ltd. & others,3 reported in 2022(II) OLR 848, admission made by the Opposite Party No.2 in Para- 11 of the Consolidated Counter Affidavit, clarification given by the Additional Secretary to Government, Government of Odisha, Forest, Environment and Climate Change Department dated 18.12.2021, as at Annexure-H/2 to the additional affidavit filed on behalf of Opposite Party No.2, so also general conditions for grant of pension, which is on different context, the prayer of the Petitioner to set aside the Disciplinary Proceeding dated 21.07.2012, as at Annexure-1, deserves to be allowed. 11. Mr. Padhi, learned Senior Counsel for Opposite Party No.2 fairly concedes before this Court that there is no such specific provision to continue the Disciplinary Proceeding against the Petitioner after his superannuation, even though the same was initiated prior to his retirement and such
Arguments
Sri Deepak Kumar Jena, S/o Sri Basanta Kumar Jena of village: Jamkunda, PS: Baliapal, Dist: Balasore reported in writing to the Balasore Vigilance Police Station alleging therein that the Petitioner while working as Regional Officer, State Pollution Control Board, Balasore Region, allegedly demanded bribe of Rs.5,000/- for issuance of No Objection Certificate. During course of investigation, a trap was laid after making preparation and the Petitioner was caught red handed while allegedly demanding and accepting the bribe of Rs.5,000/- from the complainant and the said money was recovered from his possession. Thereafter, the Petitioner was arrested and forwarded to the judicial custody followed by initiation of vigilance case against him. Accordingly, offence under Section 13(2) read with Section 13(1)(d)/7 of the Prevention of Corruption Act, 1988 was registered against the Petitioner in connection with Balasore Vigilance P.S. Case No.35 of 2011 and in the meantime, charge sheet has been submitted. W.P.(C) No.15654 of 2016 Page 2 of 12 3. Thereafter, vide order dated 01.07.2011, the Petitioner was put under suspension. The Petitioner was allowed to go on bail by the learned Special Judge (Vigilance), Balasore on 03.07.2011. He was reinstated in service on 26.06.2012. The Opposite Party No.2-Employer issued a major penalty charge sheet against the Petitioner which was received by him on 23.07.2012. On perusal of the statement of imputations, it was ascertained by the Petitioner that the Disciplinary Proceeding has its genesis with regard to Balasore Vigilance P.S. Case No.35 of 2011 and the subject matter of the Disciplinary Proceeding and that of the Criminal Proceeding is same and the entire proceeding is based on the said Balasore Vigilance P.S. Case. Being aggrieved by the initiation of the said Departmental Proceeding, during pendency of the vigilance case, the Petitioner made a representation to Opposite Party No.2 on 14.08.2012 praying for supply of material documents based upon which, charges were framed against him and also made a further prayer that the Departmental Proceeding be kept in abeyance awaiting decision of the criminal case i.e Balasore Vigilance P.S. Case No.35 of 2011, pending before the Court of learned Special Judge (Vigilance), Balasore on the plea that the submission of objection to the allegations in the Charge W.P.(C) No.15654 of 2016 Page 3 of 12 Memo in the Departmental Proceeding at this stage, would disclose his defence, which would be used by the prosecution in the criminal case to his disadvantage. This would seriously prejudice the Petitioner in criminal proceeding because it also pointed out that since the allegations and the attenuating facts and circumstances are same and the witnesses are common in both the proceedings, the Petitioner would suffer strong prejudice in the event the Department Proceeding is allowed to be finalized during pendency of the vigilance case. Besides, it was contended before Opposite Party No.2-Disciplinary Authority that the witnesses, who would be cross-examined in the Departmental Proceeding, would know the defence of the Petitioner and accordingly would mould their evidences in the Criminal Proceeding. 4. When the matter stood thus, the Opposite Party No.2, again after lapse of more than three years, issued a letter dated 29.08.2016 to the Petitioner directing therein to submit his written statement of defence within fifteen days from the date of receipt of the said letter. 5. Being aggrieved by the said communication, the Petitioner has approached this Court with the prayer as detailed above. W.P.(C) No.15654 of 2016 Page 4 of 12 6. Though Misc. Case No.14599 of 2016 has been filed along with the Writ Petition for stay of further proceeding pursuant to letter dated 29.08.2016, as at Annexure-3 but, as is ascertained from the order sheet of the case record, neither any notice had been issued to Opposite Party No.2 nor any interim order was passed in the said Misc. Case staying the Departmental Proceeding as prayed for. During pendency of the Writ Petition, the Petitioner on attaining the age of superannuation, retired from the service with effect from 31.01.2021. Thereafter the said fact was brought on record by way of filing an Interlocutory Application for amendment, which was allowed vide order dated 14.03.2022 and the consolidated Writ Petition was filed by the Petitioner on 21.03.2022. 7. In response to the said Consolidated Writ Petition, the contesting Opposite Party No.2 has field its Consolidated Counter Affidavit on 02.05.2022 reiterating the facts averred in the Writ Petition. That apart, with regard to the averments made in paragraph-7(A) of the Consolidated Writ Petition, in paragraph-11 of the said Consolidated Counter Affidavit it has been stated as follows: “11. That the Petitioner in paragraph 7(A) of the writ petition has stated that since he has already been retired from service of the Board w.e.f 31.01.2021 and in W.P.(C) No.15654 of 2016 Page 5 of 12 the Orissa Pollution Control Board Pension Rules 2011, there is no specific provision to continue the department proceedings which was initiated prior to retirement and as such the departmental proceeding shall be deemed to be closed. The matter was thus thereafter referred to Govt. in the Forest and Environment Department for clarification. It is humbly submitted that pursuant to aforesaid communication, the Govt. of Odisha, Forest, Environment and Climate Change Department vide letter no.FE-ENV3- CASE-0008-2021 2303/FE&CC dated 18.12.2021 directed the Member Secretary i.e. O.P.-2 to take decision resorting to provisions under Regulation-7 and 8 of the Pension Regulation 2011 with a view to conclude the proceeding which was initiated against Sri Laxmidhar Pal i.e. the Petitioner during his service period as per provisions of Rule-15 of the OCS(CC&A) Rules, 1962. A Copy of the letter dated 18.12.2021 is annexed herewith as Annexure-N/2.” (emphasis supplied) 8. That apart, since the documents appended to the Consolidated Counter Affidavit, as at Annexure-N/2 was incomplete, an additional affidavit was filed by the Opposite Party No.2 on 22.02.2022 appending thereto the letter of the Additional Secretary to Government dated 18.12.2021 addressed to the Member Secretary, State Pollution Control Board, Odisha along with the relevant pages of the provision W.P.(C) No.15654 of 2016 Page 6 of 12 under Regulation-7 and 8 of the of the Pension Regulation- 2011, as Annexure-H/2 to the said affidavit. With regard to the averments made in the Writ Petition to the effect that charges are same in the Criminal Proceeding as well as in the Departmental Proceeding and hence, the Departmental Proceeding shall wait till disposal of the Criminal Proceeding and the communication dated 29.08.2016 directing the petitioner to submit his Written Statement within fifteen days from the date of receipt of said communication is illegal, in Paragraph-6 of the Consolidated Counter Affidavit, it has stated that in view of the ruling of the apex Court, there is no legal bar for taking criminal action and Disciplinary Proceeding simultaneously against the delinquent employee upon the same set of facts. 9. Heard Mr. U.K. Samal, learned Counsel for the Petitioner, so also Mr. G. Rout, learned Additional Standing Counsel for Opposite Party No.1 and Mr. S.K. Padhi, learned Senior Counsel for Opposite Party No.2. 10. Learned Counsel for the Petitioner submits that in view of the Judgments of the apex Court in the case of Bhagirathi Jena Vrs. Board of Directors, O.S.F.C. and W.P.(C) No.15654 of 2016 Page 7 of 12 others,1 reported in (1999) 3 SCC 666, so also in the case of Dev Prakash Tewari Vrs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow & others,2 reported in (2014) 7 SCC 260, Judgment passed by the coordinate Bench of