The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.199 of 2018 In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. ……………… Sujit Kumar Behera …. Petitioner -versus- D.G and I.G of Police & Others …. Opposite Parties For Petitioner :M/s. G.R. Sethi, Advocate For Opp. Parties :M/s. M.K. Balabantaray, Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 21.12.2022 and Date of Order: 03.01.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. The Present Writ Petition has been filed by the Petitioner challenging the order dated 09.08.2016 passed under Annexure-5 and subsequent order passed by the appellate authority on 18.11.2017 under Annexure-7 as well as by the revisional authority on 23.10.2017 under // 2 // Annexure-9. 2. The factual matrix giving rise to the filing of the present writ petition is that the petitioner while continuing as a Constable in Angul District, he was proceeded with a disciplinary proceeding vide Angul District Proceeding No.27 dated 24.11.2014 under Annexure-1. Though the petitioner submitted his explanation to the charges, but Opposite Party no.3 while appointing the Enquiry Officer as well as the Marshalling Officer directed for conduct of the enquiry against the petitioner. Even though the Enquiry Officer while causing the enquiry did not find any material against the petitioner, but without any basis submitted the enquiry report on 20.04.2016 under Annexure-2 by holding the petitioner guilty of the charges. The petitioner though submitted his reply to the said enquiry report while making his
Facts
reply to the first show-cause under Annexure-3, but Opposite Party No.3 without proper appreciation of the Page 2 of 12 // 3 // same, issued the second show-cause by proposing punishment of one black mark. 2.1. The Petitioner on receipt of the second show- cause though gave a detailed reply, but the Opposite Party No.3 once again without proper appreciation of the same, passed the order of punishment vide order dated 09.08.2016 under Annexure-5. The petitioner thereafter preferred an appeal before Opposite Party No.2 under Annexure-6. But the said authority rejected the appeal vide his order dated 4817 under Annexure-7. The Petitioner though preferred a revision before Opposite Party no.1 under Annexure-8, but the revisional authority as like the appellate authority, also rejected the revision vide order passed on 23.10.2017 under Annexure-9. 3.
Legal Reasoning
501. This Court in Para 14 of the said judgment has held // 7 // as follows: is “14. that whoever is a criminal “Misappropriation” offence, prescribed under Section 403 of the I.P.C., which mandates dishonestly misappropriates or converts to his own use any liable to be prosecuted for movable property “Misappropriation”. Although, the present case arises from a disciplinary proceeding, although the Petitioner has admitted, loss to the Government exchequer, but the F.I.R filed by him & the investigation thereto, having been completed by the police, with the conclusion that the “facts true”, but Final Report having been submitted, that there was “no clue” available to apprehend the accused, the said benefit has to enure to the benefit of the Petitioner. No doubt a disciplinary proceeding may continue independent of the criminal proceeding. Yet when the nature of the charge is criminal in nature, the disciplinary authority would be bound by the findings arrived at in the criminal case. It is well settled by the Hon’ble Supreme Court in the case of Cap. M. Paul Anthony v. Bharat God Mines Ltd & another reported in AIR 1999 SC 1416: “Departmental proceedings & criminal case-Based on identical set of facts-Evidence in both proceedings common-Employee acquitted in criminal conclude case-Said departmental proceedings. Order of dismissal already passed before decision of criminal case liable to be set aside.” acquittal
Arguments
It is the main contention of the learned counsel for the Petitioner that the proceeding against the petitioner was initiated under Anenxure-1 on 24.11.2014 because of his implication in a criminal case in Angul Colliery P.S. Case No.240 dated 19.09.2014 under Page 3 of 12 // 4 // Sections 452,435/506 of the Indian Penal Code. In the said criminal case, the petitioner was charged with the allegation that he came to the house of the complainant Ranjit Singh and lid fire to his motorcycle bearing Regd. No.OR-19 C 4326 and threatened the complainant’s family members to kill them unless they withdrew the case filed by the complainant’s sister Smt. Kusuma Devi in Angul Colliery P.S. Case No.155 of 2014. 3.1 It is contended that even though the proceeding against the petitioner was initiated basing on the allegation made in the aforesaid Colliery P.S. Case No.240 dated 19.09.2014 as well as Colliery P.S. Case No.155 of 2014, but the petitioner was acquitted in both the proceeding vide judgement dated 03.06.2015 in G.R. Case No.865 of 2014 arising out of Colliery P.S. Case No.240 of 2014 and G.R. Case No.537 of 2014 arising out of Colliery P.S. Case No.155 of 2014 under Annexure-10 series. Learned counsel for the petitioner vehemently contended that since prior to disposal of the disciplinary proceeding, the petitioner was already Page 4 of 12 // 5 // acquitted in both the criminal proceedings vide judgment dated 3.06.2016 under Annexure-10 series, the petitioner should not have been inflicted with the punishment vide order under Annexure-5 on 09.08.2016, which is much after the order of acquittal passed against him. 3.2 It is also contended that though the factum of acquittal was brought to the notice of the appellate authority as well as the revisional authority with the plea that the charges in the disciplinary proceeding was issued only because of the implication of the petitioner in both the criminal cases, from which he has been acquitted and accordingly the petitioner should not have been imposed with the order of punishment, but the appellate authority as well as the revisional authority without proper appreciation of the said plea, dismissed the appeal as well as revision by confirming the order of punishment passed under Annexure-5. It is also contended that since the petitioner was acquitted in both the criminal proceedings vide judgement under Page 5 of 12 // 6 // Annexure-10 series, the complainant Ranjit Singh, in order to harass the petitioner tried to prove his allegation before the enquiry officer and basing on the said deposition of the informant in the F.I.R, the Enquiry Officer held the petitioner guilty of the charges. 3.3. It is however contended that the self-same informant who also deposed in both the criminal proceedings, his evidence was not accepted by the learned SDJM while acquitting the petitioner from the charges. Hence, the evidence of the said informant should not have been accepted by the enquiry officer as well as by the disciplinary authority. Since the charges in both the criminal proceeding and disciplinary proceeding are same, in view of acquittal in the criminal proceeding, no order of punishment should have been passed by the disciplinary authority. 3.4. Mr. G.R. Sethi, learned counsel for the Petitioner in support of his aforesaid submission relied on a decision of this Court reported in 110 (2010) CLT Page 6 of 12
Decision
order can of 3.5. Similarly, learned counsel for the petitioner relied on another decision of this Court reported in 2022 (Suppl.) OLR 875. This Court in Para 6 of the said judgment has held as follows: “6. Thus, from a conspectus of the ration of aforementioned case, it is evident that if a person is honourably acquitted from the charges in the criminal case, continuance of the disciplinary proceeding on the self-same charges would not be proper. In the instant case, however final report true was submitted for Page 7 of 12 // 8 // insufficient evidence specifically on the ground that the tainted G.C. notes had not been recovered. Obviously, this cannot be treated as being akin to an honourable acquittal in a criminal case where the concerned court exonerates the accused from all charges basing on the evidence on record. This Court, therefore, finds no merit in the contentions advanced by the Petitioner challenging the initiation and continuance of the disciplinarily proceeding despite submission of final report in the Vigilance case. 3.6. Mr. Sethi, learned counsel for the petitioner accordingly contended that in view of the decisions of this Court, which have been passed taking into the decision of the Hon’ble Apex Court in the case of G.M. Tank Vs. State of Gujarat as well as Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd., punishment passed against the petitioner in the Disciplinary Proceeding under Amnnexure-5 and confirmed vide order passed under Annexure-7 & 9 cannot sustain legally security and liable for interference of this Court. 4. Mr. M.K. Balabantaray, learned Standing Counsel appearing for the State-Opposite Parties on the other hand made his submission basing on the stand taken in the counter affidavit filed by Opposite Party no.3. Page 8 of 12 // 9 // 4.1. It is contended that during course of enquiry and while recording the statement of the informants in both the criminal cases, namely, Ranjit Singh and Kusuma Devi, being examined as P.Ws. 2 & 3, they proved the charges against the petitioner. Hence, there was no occasion on the part of the Disciplinary authority to accept the plea of the petitioner regarding his acquittal in the criminal cases. It is also contended that proceeding against the petitioner has been strictly conducted in accordance with the provision contained under Rule 15 of the OCS (CCA) Rules and there is no violation of any of the provision. Therefore, the petitioner has been rightly punished with imposition of the punishment vide order under Annexure-5. The appellate authority as well as the revisional authority taking into account the materials produced during the enquiry, upheld the order of punishment while dismissing the appeal vide order at Annexures-7 & 9. 5. I have heard Mr. G.R. Sethi, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, Page 9 of 12 // 10 // learned Standing Counsel appearing for the Opposite Parties. On the consent of the learned counsel appearing for the parties, the matter was taken up for disposal at the stage of admission. 06. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the petitioner was proceeded with the charges in the Departmental Proceeding initiated under Annexure-1 because of his implication in Colliery P.S. Case No.240 dated 19.09.2014 and so also in Colliery P.S. Case No.155 of 2014. While in Colliery P.S. Case No.240 of 2014, the informant was one Ranjit Singh, in the other Criminal case i.e. Colliery P.S. Case No.155 of 2014, one Kusuma Devi was the informant. Prior to completion of the enquiry, the petitioner faced the trial in both the cases before the learned S.D.J.M, Talcher in G.R. Case No.865 of 2014 and 537 of 2014. Since the prosecution could not prove the charges against the petitioner, the petitioner was acquitted of all the charges and was set at liberty vide judgment dated Page 10 of 12 // 11 // 03.06.2015 under Annexure-10 series. Since the informant in both the cases are the P.W.2 & 3 in Disciplinary Proceeding, their statement should not have been believed In view of the fact that the competent Criminal Court did not believe their statements taken on oath. Not only that since the petitioner was proceeded in the Disciplinary proceeding because of his implication in the criminal case, in view of his acquittal in both the cases, placing reliance of the decision of this Court as cited supra, no order of punishment should have been imposed against the petitioner. Therefore, this Court is of the view that the order of punishment has been passed in violation of the ratio decided by this Court relying on the view of the Hon’ble Apex Court in the case of G.M Tank Vs. State of Gujarat as well as Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd. 6.1. Taking into account the view of this Court as cited supra, Apex Court which has been followed by this Court, I am inclined to held that the order of punishment passed against the petitioner under Annexure-5 and Page 11 of 12 // 12 // confirmed vide orders passed by the appellate authority under Annexure-7 and by the Revisional Authority under Anneuxre-9 are not legally sustainable. Therefore, this Court is inclined to quash the order under Annexure-5, 7 & 9. While quashing the same, this Court allows the writ petition. However, there shall be no order as to costs. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 3rd January, 2023/sangita Page 12 of 12