Dhurba Charan Behera vs Union Of India And Others
2023 Latest Caselaw 3608 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                             W.P.(C) No. 11940 of 2023

            Dhurba Charan Behera                     ....               Petitioner
                                                Mr. Srikar Kumar Rath, Advocate
                                          -versus-
            Union of India and others                ....       Opposite Parties
                                                               Mr. P.K. Parhi, DSGI
                                                                          along with
                                                              Mr. B.K. Padhi, C.G.C.



                      CORAM:
                      JUSTICE A.K.MOHAPATRA

                                         ORDER

Order No.                               18.04.2023
   01.      1.      This matter is taken up through Hybrid Arrangement
            (Virtual/Physical Mode).

2. Heard Mr. Srikar Kumar Rath, learned counsel appearing for the Petitioner; and Mr. P.K. Parhi, learned D.S.G.I. along with Mr. B.K. Padhi, learned C.G.C. appearing for the Union of India.

3. The present writ petition has been filed by the Petitioner with a prayer for a direction to the learned J.M.F.C.(P), Kujanga to conclude the criminal trial in G.R. Case No.119 of 2023, corresponding to P.S. Case No.33 dated 26.01.2023 within a period of one year and further a direction to Opposite Party No.5-The Commandant, CISF Unit PPA, Paradip not to proceed with the Disciplinary Proceeding initiated against him pursuant to Charge Memo dated 04.04.2023 under Annexure-5 till conclusion of the aforesaid criminal trial.

// 2 //

4. It is submitted by Mr. S.K. Rath, learned counsel appearing for the Petitioner that the F.I.R. was lodged on 26.01.2023, inter alia, alleging therein that the S.I. of Police of Paradeep Lock Police Station was on patrolling duty on 26.1.2023 on NH-5(A), i.e., Paradeep-Chandikhol road. At about 5.30 P.M. a Truck bearing Registration No.OD-21-J-3747 loaded with stolen coal was proceeding from Paradeep Port towards Manguli, Cuttack. The patrolling team intervened and stopped the vehicle. Since the driver could not produce any paper, the vehicle was seized along with the coal stock. The driver of the truck stated before the police that on the direction of one Jagannath Patra and two other persons, the coal was being transported from Paradeep Port through Gate No.1. On the basis of such report, an F.I.R. was registered for commission of offence under Section 379, 411, 120-B/34 of the I.P.C. read with Section 21 of the MMDR Act. Although in the F.I.R., the name of the Petitioner was not mentioned, however, after investigation, the Petitioner has been arrayed as an accused in the above noted P.S. Case. Thereafter, the Petitioner was arrested and released on bail. While the aforesaid criminal case was pending before the trial court, a disciplinary proceeding was initiated against the Petitioner and the Petitioner was placed under suspension. It is submitted by the learned counsel for the Petitioner that while the investigation of the case is still going on, the Opposite Parties-authorities hurriedly suspended the Petitioner and initiated a Disciplinary Proceeding against him. He further contended that the allegations in the criminal case

// 3 //

are identical to the charges leveled against the Petitioner in the Disciplinary Proceeding. Accordingly, the Petitioner has approached this Court by filing the present writ petition to expedite the criminal trial and further it has been prayed to stay the Disciplinary Proceeding till disposal of the above noted criminal case.

5. Learned counsel for the Petitioner in course of his argument submitted that since the nature of allegation both in criminal case as well as in the departmental proceeding are identical, during pendency of the criminal case where the investigation has not yet been concluded and no charge sheet has been filed, it would not be prudent, fair and in the interest of justice to allow Departmental Authorities to proceed with the Disciplinary Proceeding. He further contended that in the event the Disciplinary Proceeding is to continue, the Petitioner would compel to disclose his defence by filing a written statement of defence. Further, he might be required to examine some of the witnesses whom he might examine in his defence in the criminal case. Therefore, learned counsel for the Petitioner expresses his apprehension that if the Petitioner is compelled to resolve to such a course, the same would jeopardize the prospect of the delinquent employee in the criminal case. In support of his contention, learned counsel for the Petitioner relied upon the judgments reported in AIR 1999 SC 1416, AIR 1965 SC 155 and AIR 2014 SC 989. Further, referring to the decision of the Hon'ble Supreme Court in Capt. M. Paul

// 4 //

Anthony v. Bharat Gold Mines Ltd., reported in AIR 1999 SC 1416, learned counsel for the Petitioner submitted that the principle laid down by the Hon'ble Supreme Court in Capt. M. Paul Anthony's case (supra) squarely applies to the fact of the present case. In the context of the principle laid down in Capt. M. Paul Anthony's case (supra), learned counsel for the Petitioner submitted that not only the charges in the criminal case are grave in nature and complicated questions of fact and law are involved in the said case, further the Departmental Proceeding and the criminal case are based on identical and similar set of facts and charges in the criminal case as well as in the Departmental Proceeding are also similar. Learned counsel for the Petitioner also referred to the later judgment of the Hon'ble Supreme Court in M/s. Stanzen Toyotetsu India Pvt. Ltd. v. Girish V. & others, reported in AIR 2014 SC 989.

6. On perusal of the said judgment, this Court found that while referring to the judgment in Capt. M. Paul Anthony's case (supra), the Hon'ble Supreme Court ultimately directed the Court dealing with the criminal charges to conclude the proceeding as expeditiously as possible, preferable within a period of one year. Further, it was also directed that the Disciplinary Proceeding shall remain stayed for a period of one year. In the event the trial is not concluded within the aforesaid time, it is open for the Disciplinary Authority to continue with the Disciplinary Proceeding and conclude the same in accordance with law.

// 5 //

7. Learned Deputy Solicitor General of India along with Central Government Counsel opposing the prayer for the Petitioner submitted that it is not known as to when a criminal trial shall come to an end. Therefore, it would not be fair, proper and judicious to direct stay of the Disciplinary Proceeding. In support of their contention, learned D.S.G.I. along with C.G.C. referred to a judgment of Hon'ble the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. & Ors. v. Sarvesh Berry (Appeal (Civil) No.7980 of 2004 decided on 09.12.2004).

8. On perusal of the said judgment, this Court is of the view that the facts of the case in the above noted judgment referred to by the learned D.S.G.I. are different than the facts involved in the present case. Moreover, while rejecting the prayer for stay of the Disciplinary Proceeding, the Hon'ble Supreme Court has categorically stated that the facts of the above noted case does not fall within the principles laid down by the Hon'ble Supreme Court in Capt. M. Paul Anthony's case (supra). Therefore, the said case is distinguishable of facts.

9. On a careful consideration of the facts involved in the present writ petition as well as the contentions raised by the learned counsels appearing for the respective parties and on a detailed analysis of the law governing the field, this Court is of the considered view that the facts involved in the criminal case as well as the Disciplinary Proceeding are almost similar and that in the event the Petitioner is compelled to file his the written statement of defence disclosing his defence is likely to

// 6 //

take in the facts of the present case, the Petitioner is likely to be prejudiced and his prospectus in the criminal trial would be seriously jeopardized.

10. Therefore, this Court deems it proper to direct the Disciplinary Authority not to proceed with the Disciplinary Proceeding against the Petitioner for a period of one year from today. The criminal court in session over the above noted criminal case is also directed to make every endeavour to conclude the trial as expeditiously as possible, preferably within a period of one year from today. The Petitioners are directed to cooperate with the trial court for early conclusion of the trial. It is further made clear that in the event the trial is not concluded within the aforesaid time stipulation, then it is open for the Departmental Authority to proceed with the Disciplinary Proceeding and conclude the same as per law.

11. With the aforesaid observation and direction, the writ petition stands disposed of.

(A.K. Mohapatra) Judge Debasis