The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.109 of 2011 An application under Section 19 of the State Administrative Tribunal’s Act, 1985. ……………… Pratap Chandra Barik …. Petitioner -versus- D.G. & I.G. of Police & Others …. Opposite Parties For Petitioner M/s. N. Lenka, A. Parida, A. : Nayak & H.K. Mohanta. For Opp. Parties : M/s. B. Panigrahi, Addl. Standing Counsel. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing:13.09.2023 and Date of Order:22.09.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode.
Legal Reasoning
2. Heard Mr. N. Lenka, learned counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel for the State-Opposite Parties. 3. The Petitioner has filed the present Writ Petition challenging the order dtd.28.03.2008 so passed by Opposite Party No.4 under Annexure-16 and confirmed by // 2 // the appellate authority-Opposite Party No.3 vide his order dtd.22.04.2010 under Annexure-18. 4. It is the case of the Petitioner is that the Petitioner while continuing in the establishment of Opposite Party No.5 as an A.S.I of Police, a proceeding was initiated against him vide Annexure-3 with the following charge:- “C H A R G E A.S.I. Pratap Chandra Barik of Mayurbhanj District is turpitude and charged with gross misconduct, moral dereliction of duty in that. While he was functioning as in-charge of Chadheibhal O.P. under Karanjia P.S., he developed friendship with the Chhatu @ Jakir Hussain, S/o.. Ahamad Hussain of Chadheibhal and allegedly engaged him for illegal collection of money from plying trucks loaded with cattle’s. On 30.03.2000 early morning he engaged the said Chhatu @ Jakir Hussain of Chadheibhal and Susil Karua of Chadheibhal to chase one Truck loaded with cattle’s in a Motor Cycle for collection of illegal money as a result of which Chhatu @ Jakir Husain met with an accident and Chhatu @ Jakir Hussain died at the spot and the G.R. Susil Karua sustained injuries which refers to dt.30.05.2000 Case U/s.270/337/338/304(A) I.P.C. Karanjia No.63 P.S. He is therefore directed show cause by 15.09.2000 as to why he shall not be suitable dealt within the event of the charge being held to provided against him. That any representation he may with to either in writing or orally will be duly considered by the competent authority to pass final order before passing such order”. 4.1. In the proceeding, the Petitioner not only filed his written statement of defence, but also participated in the enquiry. The Enquiry Officer without proper appreciation of the materials held the Petitioner guilty of the charges vide his report submitted under Annexure-4. On receipt of the enquiry report, Opposite Party No.4 issued the 1st show Page 2 of 8 // 3 // cause under Annexure-5 and the Petitioner though gave a detailed reply under Annexure-7 but without considering the same in its proper perspective, when the Petitioner was imposed with the punishment in Mayurbhanj District Proceeding No.30/2000 vide order dtd.28.03.2008 under Annexure-16, he preferred an appeal against the said order. 4.2. The appellate authority-Opposite Party No.2 vide his order under Annexure-18 when confirmed the order of punishment so passed against the Petitioner, Petitioner challenging the same filed a revision before Opposite Party No.1. But Opposite Party No.1 vide his order under Annexure-9 while setting aside the punishment so imposed, remitted the matter with a direction to cause fresh enquiry. The revisional authority also held that the period of suspension be decided after disposal of the proceeding. 4.3. It is contended that pursuant to the order passed by the revisional authority under Annexure-9, fresh charges were framed against the Petitioner vide Annexure-10 and the Petitioner on receipt of the same submitted his reply under Annexure-11. It is contended that without proper appreciation of the stand taken by the Petitioner in his reply to the charges under Annexure-11 and the stand taken in the written statement of defence under Annexure-12, Opposite Party No.4 proceeded with the Page 3 of 8 // 4 // matter with appointment of Enquiry Officer to conduct the enquiry. Basing on the enquiry report Opposite Party No.4 issued the 1st and 2nd show cause. The Petitioner on receipt of the 2nd show cause issued under Annexure-14, submitted his reply under Annexure-15. But Opposite Party No.4 once again without proper appreciation of the stand taken by the Petitioner imposed the punishment vide the impugned order dtd.28.03.2008 under Annexuire-16. Opposite Party No.4 while disposing the proceeding awarded punishment of forfeiture of increment for a period of one year with cumulative effect carrying value of two black marks and treated the period of suspension as such. 4.4. It is contended that challenging the order of punishment so passed by Opposite Party No.4 under Annexure-16, Petitioner filed an appeal before Opposite Party No.2 under Annexure-17. But the appellate authority without proper appreciation of the grounds of appeal rejected the same vide order dtd.22.04.2010 under Annexure-18. 4.5. It is contended that the proceeding in question was initiated against the Petitioner under the provisions contained in the Police Manual. Under PMR-824, no such punishment to treat the period of suspension as such is prescribed. But Opposite Party No.4 while disposing the Page 4 of 8 // 5 // proceeding with passing of the order under Annexure-16 awarded punishment of forfeiture of increment for a period of one year with cumulative effect carrying value of two black marks. Along with the said punishment Opposite Party No.4 directed to treat the period of suspension from 06.06.2000 to 02.09.2000 as such. 4.6. It is contended that since no such punishment to treat the period of suspension as such is prescribed under PMR-824, the said punishment is not sustainable in the eye of law. In support of the aforesaid submissions, learned counsel for the Petitioner relied on an order passed by this Court on 11.09.2023 in WPC(OAC) No.4466/2015. This Court in Para-4.1, 4.2, 4.3, 6 & 6.1 of the order has held as follows:- “4.1. It is also contended that while awarding one black mark, the direction to treat the period of suspension as such is not permissible as no such punishment is prescribed under PMR-824. In support of 4.2. the aforesaid submission, Mr. Mohanty relied on the decision of this Court passed on 28.08.2023 in WPC(OAC) No.1723 of 2018. This Court in Para-6 and 6.1. of the said order has held as follows:- 4.3. Mr. Mohanty also relied on another decision of the Hon’ble Apex Court in the case of Vijay Singh vs. State of U.P. & Others in Civil Appeal No.3550 of 2012( Arising out of SLP (C) No.27600 of 2011) decided on 13.04.2012. The view of the Hon’ble Apex Court in Para-15 & 16 of the said judgment are quoted hereunder:- Page 5 of 8 // 6 // “15. Unfortunately, a too trivial matter had been dragged unproportionately which has caused so much problems to the appellant. There is nothing on record to show as to whether the alleged delinquency would fall within the ambit of misconduct for which disciplinary proceedings could be initiated. It is settled legal proposition that the vagaries of the employer to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant rules is nonetheless a misconduct (See: M/s. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut & Ors., AIR 1984 SC 505; and A.L. Kalra v. The Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361). 16. Undoubtedly, in a civilized society governed by rule of law, the punishment not prescribed under the statutory rules cannot be imposed. Principle enshrined in Criminal Jurisprudence to this effect is prescribed in legal maxim nulla poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law. In S. Khushboo v. Kanniammal & Anr., AIR 2010 SC 3196, this Court has held that a person cannot be tried for an alleged offence unless the Legislature has made it punishable by law and it falls within the offence as defined under Sections 40, 41 and 42 of the Indian Penal Code, 1860, Section 2(n) of Code of Criminal Procedure 1973, or Section 3(38) of the General Clauses Act, 1897. The same analogy can be drawn in the instant case though the matter is not criminal in nature. in view of maintainable in the eyes of law”. Thus, the above, the punishment order is not 6. Having heard learned counsel for the Parties and after going through the materials available on record and placing reliance on the decisions as cited (supra), this Court is of the view that while awarding the punishment of one black mark no direction could have been issued to treat the period of suspension as such, as no such punishment is prescribed under PMR-824. 6.1. Therefore, the punishment so far as it relates to treating the period of suspension as such is not sustainable in the eye of law. Accordingly, this Court is inclined to quash the punishment so far as it relates to treating the period of suspension as such so passed by disciplinary authority–Opposite Party No.4-under Annexure-7 and confirmed by the appellate and revisional authority – Opposite Party Nos.3 & 2 vide Annexures-11 and 13. This Court accordingly directs to treat the period of suspension as leave due and admissible and for passing of an order to that effect by Opposite Party No.4 within a period of 2 (two) months from the date of receipt of the order. This Court is not inclined to interfere with the other punishment i.e. award of one black mark”. 5. Mr. Panigrahi, learned Addl. Standing Counsel on the other hand contended that the Petitioner in the proceeding in question when was initially imposed with the punishment, the matter was carried in appeal and Page 6 of 8 // 7 // thereafter in revision. The revisional authority while setting aside the order of punishment so passed against the Petitioner remanded the matter to Opposite Party No.4 with a direction to cause fresh enquiry. On receipt of the order so passed by the revisional authority fresh enquiry was conducted and basing on the enquiry report so submitted, Petitioner was issued with the 1st and 2nd show cause. Opposite Party No.4 after due appreciation of the stand taken in the reply to the 2nd show cause, passed the order of punishment under Annexure-16. The Petitioner though preferred an appeal against the order of punishment before Opposite Party No.2, but the appellate authority confirmed the order of punishment while rejecting the appeal vide order dtd.22.04.2010 under Annexure-18. 5.1. It is accordingly contended that since after due perusal of the materials available in the proceeding file disciplinary authority -Opposite Party No.4, imposed the punishment vide order dtd.28.03.2008, which has been confirmed by Opposite Party No.2 vide
Decision
order dtd.22.04.2010 under Annexure-18-Series, it needs no interference of this Court. However, it is fairly contended that under PMR-824, no such punishment is prescribed to treat the period of suspension as such. Page 7 of 8 // 8 // 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the proceeding in question against the Petitioner was initiated under the provisions of Police Manual. It is also found that no such punishment to treat the period of suspension as such is prescribed under PMR-824. Therefore, placing reliance on the decision so cited by the learned counsel for the Petitioner, this Court is inclined to quash the order, so far as it relates to treating the period of suspension as such. While interfering with the same, this Court is inclined to quash that part of the order wherein the period of suspension from 06.06.2000 to 07.09.2000 has been treated as such. While quashing the same, this Court directs Opposite Party No.4 to treat the period from 06.06.2000 to 07.09.2000 as leave due and admissible and pass a fresh appropriate order within a period of two (2) months from the date of receipt of this order. 7. With the aforesaid observations and directions, the Writ Petition stands disposed of. Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Jan-2024 15:50:29 Orissa High Court, Cuttack Dated the 22nd of September, 2023/Subrat (Biraja Prasanna Satapathy) Judge Page 8 of 8