Sarbeswar Sahu vs State Of Orissa And Others
2021 Latest Caselaw 3938 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                               W.P.(C) No.11042 of 2020


            Sarbeswar Sahu                          ....          Petitioner
                                            Mr. Ashutosh Mishra, Advocate
                                       -versus-
            State of Orissa and others              .... Opposite Parties
                                                  Mr. P.K. Muduli, A.G.A.

                        CORAM:
                        THE CHIEF JUSTICE
                        JUSTICE B. P. ROUTRAY

                                     ORDER

22.03.2021 Order No.

02. 1. In the present writ petition, the Petitioner has prayed for quashing of the order passed by the Disciplinary Authority dated 27th June, 2018 (Annexure-15) as well as the order passed by the Appeal Committee dated 5th September, 2019 (Annexure-17).

2. The Petitioner is working as Grade-I Bench Clerk in the court of the learned Special Judge (Vigilance), Sambalpur. In one trial case record bearing C.T.R. Case No.46 of 2006 which was posted to 12th February, 2018 for judgment after completion of argument on 2nd February, 2018, the original deposition of Defence Witness No.1 was sent for Copying Department for preparation of certified copy. After preparation of copy, the said original deposition was returned on 7th February, 2018 to the Petitioner, who was then working in the court. As the case record was in the residential office of the learned Judge, the Petitioner through the office peon, namely, Shri Debaraj Bag sent it to tag the same to

the record kept in the residential office of the learned Judge. But Shri Bag while bringing it to the residential office of the learned Judge, lost the bag containing original deposition along with his other belongings for which he reported the matter to the Police in Station Diary Entry No.026 dated 10th February, 2018 of Dhanupali Police Station.

3. An explanation was called from Shri Bag for missing the deposition. After receipt of explanation from Shri Bag, a confidential report was also called for from the learned Vigilance Judge for fixing responsibility on the defaulting staff. The learned Vigilance Judge submitted his report dated 13th March, 2018. Thereafter, disciplinary proceedings in D.P. No.02/2018 and D.P. No.03/2018 were instituted against the Petitioner and Shri Debaraj Bag respectively. The charge was to the effect that the Petitioner has committed negligence in discharging official duties amounting to gross-misconduct, carelessness and dereliction in duty. The particulars of charge framed against the Petitioner are reproduced below.

"1. WHEREAS on dt.7.2.2018 while working as Bench Clerk in the Court of Special Judge (Vigilance), Sambalpur, you were instructed by the Presiding Officer to send the original deposition of D.W.1 of CTR Case No.46/2006 of the Court of Special Judge (Vigilance), Sambalpur to Res. Office and to tag the same with the case record which was already sent to the Res. Office for preparation of judgment but you, instead of doing so instructed Sri

Debaraj Bag, Office Peon of such Court to take the deposition to the Res. Office and tag the same with the case record personally.

2. WHEREAS due to your such carelessness and negligence, the original deposition of D.W.1 of CTR Case No.46/2006 of the Court of Special Judge (Vigilance), Sambalpur is missing, for which the matter was reported to police."

4. The Petitioner in his defence submitted that on 7th February, 2018 as per the verbal order of the Presiding Judge, he by tagging the deposition in a flyleaf asked Shri Bag to keep the same in record in the residential office of the learned Judge and Shri Bag missed the document while taking the same to residential office. So no carelessness or negligence on the part of the delinquent Petitioner is there. Shri Bag has also not attributed anything in his explanation against the Petitioner.

5. The Enquiry Officer in his report dated 18th June, 2018 (Annexure-13) did not find the delinquent Petitioner guilty of the charges and recommended to exonerate him from the same.

6. But the Disciplinary Authority in its order dated 27th June, 2018 did not agree with the findings of the Enquiry Officer and come to hold that the delinquent Petitioner was the custodian of the case record and had every responsibility to carry the original deposition to the residential office of the learned Judge and accordingly censured the Petitioner.

7. The Petitioner appealed against the same to the High Court of Orissa on administrative side and the Appeal Committee in their order dated 5th September, 2019 confirmed the said punishment of censure on the Petitioner. Both these orders of the Disciplinary Authority and the Appeal Committee are the subject matter of challenged in the present writ petition.

8. Mr. Ashutosh Mishra, learned counsel for the Petitioner contends that the Disciplinary Authority is not justified in holding the Petitioner guilty of the charges without any material against him. It is also submitted that the punishment of censure has an adverse effect of the career prospects of the Petitioner as his further promotion is due shortly.

9. On the other hand, Mr. P.K. Muduli, learned Additional Government Advocate for the State-Opposite Parties supporting the impugned orders submits that the Petitioner cannot be absolved of his duties of custody of the record being the Grade-I Bench Clerk of the court.

10. Though this matter has been listed for admission, but on consent of the parties the same is heard finally.

11. The impugned order of the Disciplinary Authority under Annexure-15 reveals that the Disciplinary Authority disagreed with the finding of the Inquiry Officer mainly in view of the contentions of the confidential letter dated 13th March, 2018 of

the learned Special Judge (Vigilance), Sambalpur. Since it is reported in the said letter that the Presiding Judge has instructed the Bench Clerk (Petitioner) to send the deposition to the residential office and to tag the same with the record, therefore, the finding of the Inquiry Officer that the Petitioner was not the custodian of the record is not correct. But here it is relevant to see the statements of the Presiding Judge made before the Inquiry Officer, the copy of which has been placed under Annexure-11. He has categorically stated that, "I had also instructed the Office Peon Sri Debaraj Bag to take the deposition of D.W.1 and put it in the Judgment Box and to personally tag the deposition in C.T.R. 46/2006 as it was urgent for preparation of Judgment." In the cross examination, he has further stated specifically that, "It is a fact that I had not instructed the Delinquent to take the deposition of D.W.1 personally in C.T.R. No.46/2006 in my Res. Office but I instructed the Office Peon Sri Debaraj Bag to take the same to my Res. Office in the Judgment Box and to tag it personally in C.T.R. No.46/2006."

In view of such statement of the Presiding Judge before the Inquiry Officer, no more relevancy is found in the contention of the letter dated 13th March, 2018 of the learned Presiding Judge addressed to the Disciplinary Authority. Therefore, the Disciplinary Authority is not found justified in disagreeing with the finding of the Inquiry Officer ignoring such clear statements of the learned Presiding Judge. As such holding guilty the Petitioner of the charges in disagreeing with the finding of Inquiry Officer is not found justified on the part of the Disciplinary Authority. For the said reasons, we also do not agree

with the observation of the Appeal Committee that the negligence of the appellant has been established.

12. Accordingly, the impugned orders dated 5th September, 2019 (Annexure-17) and dated 27th June, 2018 (Annexure-15) are quashed and the punishment of censure imposed on the Petitioner is set aside.

13. The writ petition is allowed and no order as to costs.

(Dr. S. Muralidhar) Chief Justice

( B.P. Routray) Judge

B.K. Barik