The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.991 of 2018 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Jagannath Behera …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioners : Mr. A.C. Behera, Advocate For Opp. Parties : Mr. S. Rath Addl. Standing Counsel PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 27.08.2024 and Date of Judgment: 27.08.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. A.C. Behera, learned counsel appearing for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the State-Opp. Parties. // 2 // 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “Therefore, it is respectfully prayed that this Hon'ble Court may graciously be pleased to Admit this Writ Petition, issue Rule NISI for calling upon the opp. parties for show cause from the opp. Parties and after hearing from the parties this Hon'ble Court may direct to the Opp. party No.2 in writ of Mandamus for providing full pension and other retiral financial benefits the departmental proceeding initiated against him within a stipulated time for the interest of justice. the petitioner by quashing to This Hon'ble Court may pass any other order (s) direction (s) as this Hon'ble court may deem fit just and proper for the ends of justice. And for this act of kindness the petitioner as in duty bound shall ever pray.” 4. Learned counsel for the Petitioner contended that even though Petitioner has retired since 29.02.2012, but on the ground of pendency of the disciplinary proceeding and vigilance proceeding with self- same charges, Petitioner has not yet been extended with his retiral benefits, save and except sanction of provisional pension. 4.1. Learned counsel for the Petitioner contended that in the proceeding initiated against the Petitioner vide Memorandum No. 1669 dtd.09.08.2005 the Enquiry Officer submitted the report on 11.02.2010 under Annexure-2 with the following finding:- Page 2 of 21 // 3 // “Regarding the vigilance P.S. Case No. 46/99 the Delinquent Officer states that he has no involvement neither any case was against him nor mention of his name in vigilance case. The marshalling officer also could not produce the records revealing involvement of the delinquent officer. This charge also could not be established. On the above enquiry, it is suggested that the delinquent officer may be exonerated.”
Legal Reasoning
seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be nonsuited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, into consideration the delay and laches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal and others v. State of W.B and others., (2009) 1 SCC 768 has held to the following effect: the High Court will have to necessarily take “56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches. 57. If the petitioner wants to invoke jurisdiction of a writcourt, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261] , Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969]). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi Page 14 of 21 // 15 //
Arguments
4.2. It is contended that after submission of such report by the Enquiry Officer on 11.02.2010 under Annexure-2, Superintendent of Police, Vigilance, Cuttack vide letter dtd.27.08.2010 under Annexure-C/2 to the counter affidavit was moved by the ADM, Jajpur to give his views with regard to the finding of the Enquiry Officer during pendency of the vigilance case in Vigilance P.S. Case No. 46 dtd.27.12.1999. 4.3. Learned counsel appearing for the Petitioner contended that on the face of the report submitted on 11.02.2010 under Annexure-2, ADM, Jajpur vide letter dtd.27.08.2010 under Annexure-C/2 to the counter affidavit requested Superintendent of Police, Vigilance, Cuttack Division, Cuttack to give his views in the matter as Petitioner has been exonerated from the charges in the Departmental Proceeding. 4.4. It is contended that without accepting the enquiry report so submitted on 11.02.2010 under Annexure-2, ADM, Jajpur vide order dtd.06.07.2011 under Annexure-D/2 appointed a fresh Enquiry officer Page 3 of 21 // 4 // to conduct the enquiry. The said Enquiry Officer basing on the order passed on 06.07.2011 submitted a fresh report on 29.03.2012 under Annexure-5 inter alia with the following findings:- “After going through the details of the case, it is found that the proceeding case was earlier enquired by Revenue Officer, Sub- Collector’s Office, Jajpur and recommendated for exoneration of charges against the delinquent officer as the charge was not established and this is the denovo enquiry being made by the order of Collector basing on the letter No. 3339NCR(S) dt.06.05.2011 of Under Secretary to Govt., GA Vigilance Department, Cuttack. Hence, the Department Proceeding drawn up against the delinquent officer may not be finalized till conclusion of the vigilance case and may be continued till finalization of the case. My enquiry report along with the case record submitted to the Collector, Jajpur for favour of kind orders.” 4.5. Learned counsel for the Petitioner contended that after receipt of the report submitted on 29.03.2012, no further progress was made to the disciplinary proceeding on the ground of pendency of Cuttack Vigilance P.S. Case No. 46/1999 against the Petitioner. It is accordingly contended that since on the ground of pendency of the vigilance proceeding, the departmental proceeding is not being finalized on the face of the report submitted under Annexure-2 & 5 and the vigilance proceeding in Cuttack Vigilance P.S. Case No. 46/1999 is not proceeding further even after submission of the final form, the action of the Opp. Parties in not releasing the retiral benefits Page 4 of 21 // 5 // of the Petitioner as due and admissible on the ground of pendency of the vigilance proceeding is not sustainable in the eye of law. 5. Mr. S. Rath, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party Nos. 1 & 2. It is contended that even though in the proceeding initiated against the Petitioner the Enquiry Officer submitted a report on 11.02.2010 under Annexure-B/2 with the suggestion that Petitioner may be exonerated, but basing on the letter issued by the ADM, Jajpur on 27.08.2010 under Annexure-C/2, Superintendent of Police, Vigilance when observed that departmental proceeding may be conducted as per due procedure and requested to ensure the conduct of the proceeding as per the procedure, vide office order dtd.06.07.2011 under Annexure-D/2 to the counter affidavit, a fresh Enquiry Officer was appointed. The said Enquiry Officer after conducting the enquiry submitted a report on 29.03.2012 under Annexure-E/2 with the finding that since the vigilance proceeding has not yet been finalized, the departmental proceeding may not be finalized till such disposal of the vigilance case. 5.1. It is contended that in terms of the said finding no further progress was made to the departmental proceeding awaiting disposal of the Page 5 of 21 // 6 // vigilance proceeding. It is also contended that since the vigilance proceeding has not yet been finalized so initiated in the year 1999, Opp. Parties are not in a position to conclude the departmental proceeding so initiated against the Petitioner vide Memorandum dtd.09.08.2005. It is accordingly contended that in view of the pendency of both the proceedings, Petitioner is not eligible to get his retiral benefits, save and except, provisional pension, which has since been sanctioned, in view of the provisions contained under OCS (Pension) Rules, 1992. 6. Considering the stand taken in the writ petition as well as in the counter affidavit regarding non-release of the retiral benefits on the ground of pendency of the vigilance proceeding, this Court passed the following order on 24.06.2024:- “2. Heard learned counsel appearing for the Parties. 3. Considering the stand taken in the counter affidavit, learned Addl. Govt. Advocate is directed to obtain instruction with regard to the present status of Cuttack Vigilance P.S. Case No. 46 dtd.27.12.1999. 4. As requested, list this matter on 3rd July, 2024.” 6.1. Basing on the order passed by this Court on 24.06.2024, learned Addl. Standing Counsel appearing for the Department when made a submission that in the vigilance case in Cuttack Vigilance P.S. Case Page 6 of 21 // 7 // No. 46 dtd.27.12.1999, final form has already been submitted since 17.10.2003, this Court passed the following order on 11.07.2024:- “2. Heard learned counsel appearing for the Parties. 3. Pursuant to the order passed by this Court, Mr. Sangram Das, learned Standing Counsel appearing for the Vigilance Dept. produced copy of the final form so submitted by the Department in Cuttack Vigilance P.S. Case No. 46 dtd.27.12.1999 vide Final Report No. 49 dtd.17.10.2003 before the learned Chief Judicial Magistrate, Cuttack. Copy of the report so produced in Court be kept in record. 4. On being confronted with the report, learned Addl. Govt. Advocate contended that since the Court in question has not yet accepted the final form, till date retiral benefits of the Petitioner has not been released. 5. Registry is directed to obtain a report from the learned Chief Judicial Magistrate, Cuttack with regard to non-acceptance of the final report so submitted in the aforesaid vigilance case since 17.10.2003. 6. As requested, list this matter on 19th July, 2024. 7. Office is directed to indicate the name of Mr. Sangram Das, Standing Counsel (Vigilance) correctly in place of Mr. Sangram Dash in the cause list henceforth.” 6.2. Pursuant to the order passed on 11.07.2024, a report was submitted by the CJM-cum-Asst. Sessions Judge, Cuttack. In the said report so submitted it is found that even though in the vigilance case final form has been submitted since 17.10.2003, but due to non- availability of the concerned record, cognizance has not yet been Page 7 of 21 // 8 // taken. Report submitted by the CJM-cum-ASJ, Cuttack vide his letter dtd.18.07.2024 reads as follows:- “Respected Sir, With reference to the subject captioned above, I am to submit that the above mentioned vigilance case record has never been put up before the P.O. for acceptance of the Final Report. On further verification of R-1 of P.1. Office, it reveals that the Final Form No.49 dtd.17.10.2003 in the above said case has been submitted by the 1.0. in the P.I. Office on 20.12.2003. Thereafter, there is no result noted in the said register regarding status of the case record. for from However, a report has been called the Prosecuting Inspector (Vigilance), Cuttack in that regard. The Prosecuting Inspector (Vigilance), Cuttack in his letter No. 313/Vig dated 18.07.2024 has intimated this court that the above mentioned case record has not been handed over to him by Sri Dinabandhu Das, Ex-P.I., Cuttack. For better appreciation, the copy of said report submitted by the Prosecuting Inspector (Vigilance), Cuttack is annexed herewith for kind perusal. This is for favour of kind information to place the matter before the Hon'ble Court.” 7. Basing on the stand taken in the counter affidavit and the stand taken by the Vigilance Department, learned counsel for the Petitioner contended that though on the ground of pendency of the vigilance case, the authorities are not finalizing the proceeding so initiated against the Petitioner in the year 2005, but since no cognizance has yet been taken, even though final form has been submitted on 17.10.2003, it is to be held that no vigilance case is pending against the Petitioner Page 8 of 21 // 9 // in the eye of law. In support of his aforesaid submission, learned counsel for the Petitioner relied on the following decisions of the Hon’ble Apex Court:- (i) Union of India & Ors. Vs. K.V. Jankiraman & Ors., (1991) 4 SCC 109 (ii) C.O. Arumugam & Ors. Vs. State of Tamilnadu & Ors., 1991 Supp (2) SCC 199 (iii)Harsh Kumar Sharma, IFS Vs. State of Punjab & Anr., (2017) 4 SCC 366 7.1. Hon’ble Apex Court in Para 16 of the Judgment in the case of K.V. Jankiraman has held as follows:- “16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the the preliminary investigations far, Page 9 of 21 // 10 // authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39) “(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; * * (2) * * (3) (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;”” * * 7.2. Hon’ble Apex Court in Para 3(4) of the Judgment in the case of C.O. Arumugam has held as follows:- “3(4). In any event Rule 39(d) will not give the incumbent the right to be promoted.” The Tribunal went on to observe: “It is for the government to exercise the discretion vested with it to decide whether an employee against whom disciplinary proceedings are pending is to be temporarily promoted or not. Our conclusion on the third point is that while there is no bar for consideration of persons against whom disciplinary proceedings are pending, yet the pendency of disciplinary proceedings are not to be ignored altogether, and it is incumbent upon the promoting authority to apply its mind in each case and consider the allegations, the nature of evidence in support of the allegation and the public interest involved and come to a conclusion. In the present case the in not procedure adopted by considering the claim of Regional Transport Officers against whom disciplinary proceedings are pending do not appear to be correct. Their case will have to be considered in the light of the principles set out above and a decision arrived at whether they are entitled to temporary promotion or not.” the promoting authority And it said: Page 10 of 21 // 11 // “We have found that the claims of persons cannot be ignored only on the ground of pendency of proceedings against them. The non-consideration of the seniors on account of pendency of the disciplinary proceedings and promoting juniors temporarily vitiates the temporary promotions effected. In view of our finding that a Regional Transport Officer does not become temporary promotion on account of pendency of disciplinary proceedings and in the present case, the claims of several RTOs were not considered on account of pendency of disciplinary proceedings the temporary promotions made cannot be allowed to stand.” for consideration ineligible for With this conclusion, the Tribunal set aside the panel prepared by the government for temporary promotions and also quashed the consequential promotion of R. Santhanam, A. Radhakrishnamurthy and S. Sahul Hameed — appellants 2 to 4 respectively. The position of C.O. Arumugam, appellant 1 is, however, kept undisturbed in view of the dispute relating to his seniority. The Tribunal has further directed the State Government to observe certain principles stated in the judgment in the matter of making temporary promotions.” 7.3. Hon’ble Apex Court in Para 21 to 23 of the Judgment in the case of Harsh Kumar Sharma has held as follows:- “21. In Para 7, it is clarified that even after recommendation of DPC, but before appointment of the officer, if any of the three situations arise, the case is deemed to be kept in sealed cover by virtue of Para 7 of OM dated 14-9-1992 [ Para 7 of OM dated 14- 9-1992 came up for interpretation in Union of India v. R.S. Sharma, (2000) 4 SCC 394 : 2000 SCC (L&S) 653, giving effect to the aforesaid provision.] . 22. This OM further clarifies the stage when prosecution for a criminal charge can be stated to be pending as this was not specified in OM dated 14-9-1992. Reference in this para is made to Rule 9(6)(b)(i) of the Central Civil Services (Pension) Rules, 1972 which provides that criminal charge would be treated as pending in the case of criminal proceedings, on the date on which the complaint or a report of police officer, on which Magistrate takes cognizance, is made. It, thus, makes it clear that the date on which report of police is made would be the relevant date. Page 11 of 21 // 12 // 23. We, thus, do not find fault with the action of the respondents in keeping the result of DPC in sealed cover.” 7.4. Learned counsel appearing for the Petitioner further contended that since no cognizance has been taken in the vigilance case and accordingly it is to be held that no such criminal case is pending against the Petitioner, in view of the decision rendered in the case of K.V. Jankiraman, C.O. Arumugam as well as Harsh Kuma Sharma as cited (supra). Not only that taking into account the enquiry report submitted under Annexure-2 as well as under Annexure-5, it is to be held that Petitioner is not liable for the charges so framed in the disciplinary proceeding vide Memorandum dtd.09.08.2005 and in view of such long pendency of the proceeding for last 19 years, the same is liable to be quashed. 7.5. Since no cognizance has yet been taken in Vigilance case, in view of the report submitted under Annexure-2 as well as Annexure-5, the proceeding since is pending against the Petitioner w.e.f.09.08.2005, on the ground of inordinate delay in finalizing the same, the said proceeding in view of the decision of the Hon’ble Apex Court in the case of Mrinmoy Maity Vs. Chhanda Koley & Ors., (2024 LiveLaw (SC) 318 and another decision in the case of State of Andhra Page 12 of 21 // 13 // Pradeshh Vs. N. Radhakishan, reported in AIR 1998 SC 1833, is liable to be quashed. 7.6. Hon’ble Apex Court in Para 9 to 11 of the Judgment in the case of Mrinmoy Maity has held as follows:- “9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been nonsuited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in mind by the High Court while the exercising discretionary powers under Article 226 of Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action. 10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled. 11. For filing of a writ petition, there is no doubt that no fixed period of the extraordinary jurisdiction of the writ court is invoked, it has to be is prescribed. However, when limitation Page 13 of 21 // 14 //