The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21009 of 2021 Sri Achyutananda Dash …. Petitioner Mr. Rama Krishna Bisoi, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. A.P. Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 13.03.2024 08. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the pleadings of the respective parties as well as the documents annexed thereto. 3. By filing the present writ petition, the Petitioner calls in question the order of punishment dated 23.10.2020 passed by the Opposite Party No.4-Superintendent of Police, Jajpur under Annexue-12 and order dated 16.03.2021 under Annexure-18, i.e. the conformation of the punishment order by the Appellate Authority, i.e. Opposite Party No.3- D.I.G. of Police, Central Range, Cuttack. Further the prayer has been made to release all financial benefits as is due and admissible to the Petitioner within a stipulated period of time. 4.
Legal Reasoning
The factual background of the present case leading to filing of // 2 // the writ petition, in a nutshell, is that the Petitioner was initially appointed and joined as Constable of Police under Opposite Party No.4 on 03.11.1989. While working as such, the Petitioner was promoted to the post of ASI of Police in the year 2009. While working as ASI of Police, posted at the Binjharpur Police Station, one Ganesh Mallick lodged an F.I.R. against accused Premananda Mallick alleging that the said accused had kidnapped his minor daughter and had fled away to Kerala. The aforesaid compliant has registered as Binjharpur P.S. Case No.195 dated 05.07.2016. Initially the present Petitioner was entrusted with the job of Investigating Officer of the case. In course of investigation, the Petitioner went to Kerala to rescue the victim girl with the Informant and two other persons. In Kerala, the present Petitioner rescued the victim girl, who is the daughter of the Informant, with the help of Kerala police, and brought the victim back to Binjharpur Police Station. So far the allegation against the present Petitioner is concerned, it is alleged that while in Kerala the Petitioner had to stay in Kerala for 8 days to search for the minor daughter of the Informant (victim) and as per the request of the Informant, the Petitioner had to bear the cost of police personnel as well as the Informant. The Informant had assured that after returning to his native place, he will return the amount expended by the Petitioner in connection with the stay of the Informant and his relatives in Kerala. After the victim girl was rescued, since she was minor, she was produced before the Special Court, POCSO at Jajpur. Thereafter, the Petitioner, who is an ASI of Police, could not have continued with the investigation in a matter involving an offence under the POCSO Act. As such, the investigation was handed over to the I.I.C. of Binjharpur Police Station on 20.08.2016 for further investigation. While the matter stood thus, Ganesh Mallick, the Informant, being biased by the influence of some local people, lodged an F.I.R. before the Vigilance Police on 26.09.2016 alleging that the // 3 // Petitioner has demanded Rs.6,000/- from him for the investigation. On the basis of such allegation, the Vigilance Police registered a Vigilance Case on 27.09.2016 and a trap was led. It is further alleged that the Informant went to the office of the Petitioner to pay a sum of Rs.6,000/- to satisfy the illegal demand made by the present Petitioner. Thereafter, the Vigilance Police, who were present at the spot, arrested the Petitioner and he was forwarded to judicial custody. Finally, on 28.09.2016, the Petitioner was released on bail. Since the Petitioner remained in judicial custody more than 48 hours, he was placed under suspension vide order dated 13.10.2016. Accordingly, a disciplinary proceeding was initiated against the present Petitioner w.e.f. 28.09.2016 for his involvement in Cuttack Vigilance P.S. Case No.56 of 2016 registered under Section 13(2) r/w 13(1)(d)/7 of P.C. Act, 1988. 5. While the matter stood thus, trial in Cuttack Vigilance P.S. Case No.56 of 2016, which was converted to T.R. Case No.14 of 2017, was concluded and that the trial court, vide its judgment dated 22.06.2019, acquitted the Petitioner on the ground that the prosecution has failed to prove the charges. In the said judgment, the learned trial court has categorically stated that the prosecution has failed to establish the allegation against the petitioner with regard to demand of illegal gratification, which is an indefeasible ingredient for proving the guilt of an accused in an offence involving the provisions of the P.C. Act, 1988. Accordingly, the Petitioner was acquitted under Section 248(1) of Cr.P.C. A copy of the judgment dated 22.06.2019 has been filed along
Decision
with the writ petition as Annexure-8. 6. Furthermore, with regard to the department proceeding which was initiated against the Petitioner, the Petitioner was served with the charge memo on 26.12.2016 and a departmental proceeding No.11 of 2016 was initiated and continued against the present Petitioner on the // 4 // allegation of acceptance of illegal gratification from the Informant of Binjharpur P.S. Case No.195 of 2016. The Petitioner filed his written statement of defence denying all the charges on 18.01.2017. While the aforesaid departmental proceeding was pending, the Petitioner was reinstated in service on 07.12.2017. In the departmental proceeding, the Inquiry Officer submitted his report on 25.04.2018. In such inquiry report, the Inquiry Officer has stated that although the charges stands proved against the Petitioner, however, no suggestion was given with regard to the punishment on the ground that a vigilance case on the self- same allegation was pending against the Petitioner. Finally, on 11.11.2019, the Opposite Party No.4 issued the first show cause notice to the Petitioner with a request to submit his show cause reply against the finding given by the Inquiry Officer. The Petitioner submitted his reply to the show cause on 05.12.2019 with a prayer to drop the proceeding against him as he has been acquitted in the meantime in the said vigilance case which was instituted against the present petitioner on the self-same charges as in the departmental proceeding. 7. Eventuality, a second show cause notice was issued by the Opposite Party No.4 on 10.10.2020 with the proposed punishment that the period of suspension be treated as such and one black mark be added. On 19.10.2020, the Petitioner submitted his reply to the second show cause. In such show cause reply, the Petitioner has taken a principal ground that the entire enquiry is based on no evidence and, accordingly, a prayer was made to drop such proceeding. Finally, on 23.10.2020, the Opposite Party No.4 passed the final order in the Disciplinary Proceeding thereby imposing punishment of one black mark and the period of suspension w.e.f. 28.09.2016 to 07.12.2017 to be treated as such under Annexure-12 to the writ petition. 8. The petitioner, as against the order of punishment passed in // 5 // disciplinary proceeding vide order dated 23.10.2020 under Annexure- 12, preferred an appeal before the Opposite Party No.3 on 10.11.2020 with prayer to exonerate him from all the charges. In the said proceeding before the Appellate Authority, the Petitioner submitted his written statement on 04.03.2021 by taking the principal ground that since he has been acquitted by the Vigilance Court on self-same charges, the disciplinary proceeding against the Petitioner is liable to be dropped. The Opposite Party No.3, the Appellate Authority, rejected the appeal of the Petitioner vide his order dated 16.03.2021 under Annexure-8 to the writ petition. Being aggrieved by the order dated 23.10.2020 under Annexure-12 and order dated 16.03.2021 under Annexure-18, the Petitioner has approached this Court by filing the present writ petition. 9. A counter affidavit has been filed on behalf of the State-Opposite Parties No.4. In the counter affidavit, in para-6, it has been stated that the vigilance case as well as department proceeding are based on self- same allegation. On the contrary, in para-9, it has been stated that the vigilance case and departmental proceeding are not based on self-same allegation. 10. On a careful examination of the factual background of the present case, this Court is of the view that the Departmental proceeding as well as the vigilance case against the Petitioner are based on self- same charges. 11. It has also been stated in the counter affidavit that on the basis of the allegation of gross misconduct, dereliction of duty and failure to maintain absolute integrity during discharge of his official duties, a departmental proceeding was drawn against the Charged Officer (Petitioner) basing on OGSC Rule-3 of 1959 as per Appendix-49 of Odisha PMR Vol-II for causing harassment of the complainant Ganesh // 6 // Mallick from time to time by giving false assurance for submitting of a strong charge sheet against the accused person with an alternative motive in order to avail pecuniary gain. The Opposite Parties in their counter affidavit have further stated that the law laid down by the Hon’ble Supreme Court in Ashoo Surendranath Tewari Vrs. Dy. S.P., EOW, CBI & another, decided in Criminal Appeal No.575 of 2020, is not applicable to the facts of the Petitioner’s case. Further, it has been stated that the standard of proof in a disciplinary proceeding is the preponderance of probabilities whereas in the vigilance case it has to be beyond reasonable doubts. Accordingly, it has been stated in the counter affidavit that whatever matters were before the inquiry officer during the departmental proceeding, the inquiry officer has come to a just and fair conclusion and on the basis of such inquiry report, therefore, the Opposite Parties have not committed any illegality in holding that he is guilty of the charges leveled against him and, accordingly, he has been imposed the punishment as is punishable under the rules. 12. Mr. Bisoi, learned counsel appearing for the Petitioner, at the outset, contended that the Petitioner, who was the I.O., initially had gone to Kerala to recover the victim. Although the victim was successfully recovered from Kerala, the Petitioner as well as the Informant and his relatives had to stay there eight days. He further contended that during such stay, the expenditure incurred on the stay of the Informant and his relatives was borne by the present Petitioner. The Informant had assured that after returning to his native place he will return the amount to the Petitioner. After returning to his native place, the Informant was influenced by some people and, accordingly, a compliant was lodged before the vigilance authorities and when the Informant went to the office of the Petitioner to return money which he had assured to return while he is in Kerala, vigilance authority arrested // 7 // the Petitioner and thereafter a vigilance case as well as a departmental proceeding was initiated and the Petitioner was immediately placed under suspension. Learned counsel for the Petitioner, at this juncture, emphatically submitted that there neither was there any demand nor didi the Petitioner compel the Informant to pay a sum of Rs.6,000/- to file a strong charge sheet as has been alleged. 13. In reply to the allegation made against the present Petitioner, learned counsel for the Petitioner further contended that although initially the Petitioner was the I.O. of the case, however, given that the victim was a minor, an offence under the provisions of the POCSO Act was added and as a result the investigation was transferred to the I.I.C. of the concerned police station and the Petitioner was no more the I.O. of the case. Therefore, the question of filing of the charge sheet by the Petitioner does not arise at all in the present case. Since the Petitioner was not conducting the investigation after he returned from Kerala, there was no probability of demanding any money to file any charge sheet against the accused persons by accepting bribe from the Informant. He further contended that although the Petitioner handed over the charge on 20.08.2016, a complaint was made before the vigilance police and a trap was led more than one month thereafter, i.e. on 26.09.2016. In the aforesaid factual backdrop, learned counsel for the Petitioner submitted that there exists no cogent material against the Petitioner to hold him guilty of the charges. 14. With regard to the vigilance case, learned counsel for the Petitioner submitted that the learned Special Judge, Vigilance after conducting a full-fledged trial has come to a conclusion that the prosecution has failed to prove the charges alleged against the present Petitioner. In course of argument, he referred to the final judgment of the Special Judge (Vigilance), Cuttack under Annexure-8 to the writ // 8 // petition. Further, referring to the judgment under Annexure-8 to the writ petition, learned counsel for the Petitioner led emphasis on para-11 of the judgment wherein the trial court has categorically stated that the principal factum of demand which is an indefeasible ingredient to be established has not been established by the prosecution, as a result of which, the prosecution has failed to prove the charges against the present Petitioner. He further contended that in a case of present nature wherein the offences under the provisions of the P.C. Act are involved, the demand for illegal gratification is one of the major factor which is required to be established by the prosecution to ensure conviction of the accused. Since the same has not been established in the present case by the prosecution, the entire prosecution case is bound to fail. 15. In course of argument, learned counsel for the Petitioner also referred to the judgment of the Hon’ble Supreme Court in Ram Lal v. State of Rajasthan and Others, Civil Appeal No.7935 of 2023, arising out of SLP (C) No.33423 of 2018, decided on 4th December, 2023. While referring to the judgment, the learned counsel for the Petitioner submitted that the Hon’ble Supreme Court has categorically held that there is no straight jacket formulae to come to a conclusion as to whether the accused has been honourably acquitted or not. He further contended that the ratio laid down in the aforesaid judgment enumerates that in order to come to a conclusion as to whether the accused has been honorably acquitted, the courts are required to examine the entire judgment of the trial court. In the case of Ram Lal (supra), the accused was acquitted in a criminal proceeding. However, even after acquittal in the criminal case, the departmental proceeding continued and the Petitioner in that case was terminated from service by order of the Disciplinary Authority. Such order of the Disciplinary Authority was confirmed by the Appellate Authority. Challenging such order, the Petitioner had approached the High Court. As against the dismissal of // 9 // the writ petition, the Petitioner approached the Hon’ble Supreme Court. In its judgment, the Supreme Court has finally declared that the order imposing the punishment of termination and confirmation thereof by the Appellate Authority are all illegal and untenable in the facts and circumstances of that case. Accordingly, the judgment of the High Court was set aside and a further direction was given to reinstate the Petitioner with all consequential benefits including seniority/notional promotion etc. Further, a direction was also given to pay 50% back wages. Learned counsel for the Petitioner submitted that the case of the Petitioner is squarely covered by the judgment of the Hon’ble Supreme Court in Ram Lal’s case (supra). 16. In course of his argument, learned counsel for the Petitioner also referred to the judgment of this Court by the coordinate Bench in Dusmanta Sahu v. State of Odisha and Others (WPC (OAC) No.545 of 2018, decided on 18.01.2024) and in Sailendra Nath Mohanty v. Union of Inida and Ors., reported in 2014 (I) OLR. In both the aforesaid judgments, this Court had quashed the punishment imposed in disciplinary proceeding with a direction to reinstate the Petitioner in previous posts. 17. Learned Additional Standing Counsel appearing for the State- Opposite Parties, on the other hand, submitted that the ratio laid down by the Hon’ble Supreme Court in Ram Lal’s case (supra) is not applicable to the facts of the present case. He further contended that the Petitioner was honourably acquitted in case of Ram Lal (supra) whereas in the present case, the complainant turned hostile, as a result of which, the prosecution could not prove its case. Therefore, learned Additional Standing Counsel made an attempt to draw a distinction between the two scenarios and, accordingly, submitted that since the factual scenario in both the cases are different, the law laid down in the Ram Lal’s case // 10 // (supra) is not be applicable to the fact of the Petitioner’s case. In course of his argument, learned Additional Standing Counsel submitted that the factum of acceptance of illegal gratification has been established in the departmental proceeding in view of the evidence of complainant himself, who was examined as P.W.2 in the departmental proceeding. In course of his argument, learned Additional Standing Counsel also drew the attention of this court to the evidence of P.W. 2. In such view of the matter, learned Additional Standing Counsel submitted that although the Petitioner was acquitted in the vigilance case as the prosecution has failed to establish the charges since the complainant turned hostile, however, the same is not the case in the departmental case wherein there were sufficient materials to arrive at a conclusion that the Petitioner is guilty of the charges levied against him. Moreover, it was also contended that the standard of proof in a department proceeding is different to the standard of proof in a vigilance case, i.e. while in the former it is based on the preponderance of probabilities, in the later it is beyond reasonable doubt. By applying the aforesaid standard of proof, learned Additional Standing Counsel submitted that there enough materials to come to a conclusion that the Petitioner is guilty of the charges against him. Accordingly, learned Additional Standing Counsel submitted that the impugned orders under Annexure-12 and 18 passed by the Disciplinary Authority as well as Appellate Authority are unimpeachable and the same are passed based on cogent and reliable evidence. Therefore, it was contended that the writ petition is devoid of merit and, accordingly, the same should be dismissed. 18. Having heard the learned counsels for the respective parties and on a careful examination of the pleadings from both the sides as well as arguments advanced by the learned counsels from both sides and on examination of the materials on record, this Court observes that the // 11 // allegation agaisnt the petitioner in the departmental proceeding as well as a vigilance case instituted against him, are based almost on self-same charges. In the vigilance case, the Petitioner was acquitted on the ground that the prosecution has failed to establish the demand of illegal gratification which is an indefeasible ingredient of the offences under the Prevention of Corruption Act. Moreover, it appears that the Informant himself turned hostile in the vigilance case, as a result of which, the prosecution could not establish the charges against the Petitioner. Therefore, the case ended in an acquittal. So far the departmental proceeding is concerned, although the charges are almost self-same, however, the same is to be examined on the basis of the materials available before the disciplinary authority. On a perusal of the record, it appears that the case of the department hinges entirely on the evidence of the P.W.2, i.e. the Complainant-Ganesh Mallick himself. In his evidence, which is a part of Annexure-6 to the writ petition, it appears that he had stated before the inquiry officer that the present Petitioner arranged their accommodation and food and bore all of their expenses in Kerala. On enquiry by the Informant, the Petitioner informed the informant that he had spent a total sum of Rs.8,600/- toward their accommodation and food. Accordingly, the P.W.2- Informant agreed to give Rs.6,000/- to the present Petitioner. He has further stated on 27.09.2016 that he had kept Rs.6,000/- on the table of the Petitioner and out of fear, he came out of the room and thereafter the vigilance department officer entered the room and did their duties. The vigilance officer thereafter took signature from the Informant. In his cross-examination, he has stated that he had gone to Kerala along with four members and the victim was recovered from a place which is 800 kilometers away from Alwa. After returning to their native place, the victim was produced before the Court and the Informant accompanied his daughter. Further, on the date and time of trap by the Vigilance // 12 // Officer, the Petitioner was present in the outpost and was operating a computer and that the Informant neither talked with him nor glance at his face. Most importantly, he was questioned that whether he scribed the F.I.R. lodged in the vigilance case and whether he has read over it, the Informant said no. 19. The complainant in the departmental proceeding, who is a prime witness, has deposed before the inquiry officer, which has been discussed in the preceding paragraph. On a careful analysis of the position of the star witness, it appears that there was no demand by the Petitioner. On the contrary, the Informant had admit to return a sum of Rs.6,000/- to the Petitioner. 20. In the aforesaid factual background and on the face of the material on record, this Court is constrained to hold that in the departmental proceeding also the department has failed to establish the factum of demand by the present Petitioner. The evidence of the P.W.2 before the inquiry officer for finding of the vigilance court in the criminal trial compels this Court to come to a conclusion that both in the departmental proceeding as well as in the vigilance case, the department and the prosecution respectively have failed to establish the demand of illegal gratification by the petitioner. Therefore, since the demand has not been established, the entire edifice of the compliant is bound to fall. 21. In view of the aforesaid analysis of the factual position and the finding arrived at by this Court, this Court is of the considered view that the case of the Petitioner is covered by the ratio laid down by the Hon’ble Supreme Court in Ram Lal’s case (supra) as has been referred to hereinabove. Since the Petitioner has been acquitted in the vigilance case on the ground that the allegation of demand of illegal gratification was not proved, therefore, by applying the ratio in Ram Lal’s case // 13 // (supra), this Court has no hesitation in coming to a conclusion that the Petitioner was honorably acquitted in the vigilance case. Moreover, the evidence of the Informant, who was examined as P.W.2 by the Inquiry Officer, is not convincing and only on the basis of such evidence no liability can be assigned to the Petitioner. 22. In view of the aforesaid analysis of law as well as the factual position, this Court has no hesitation in coming to a conclusion that the Opposite Parties have committed an illegality by holding the Petitioner is guilty in Departmental Proceeding and thereafter imposing the punishment on the Petitioner. Accordingly, the impugned orders under Annexure-12 and 18 are hereby quashed. 23. Hence, the writ petition stands allowed. ( A.K. Mohapatra) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 19-Mar-2024 19:00:58