Prof (Dr.) Pusparaj Dash vs State Of Odisha And Another
2023 Latest Caselaw 1829 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.1956 of 2022

  Prof (Dr.) Pusparaj Dash               ....            Petitioner
                             Mr. Sukanta Kumar Mishra, Advocate


                                 -Versus-


  State of Odisha and Another         ....      Opposite Parties
              Mr. Sidharth Shankar Mohapatra, ASC for OP No.1
                                           None for OP No.2
            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:28.02.2023

1.

Inherent jurisdiction of this Court is invoked by the petitioner for quashment of the criminal proceeding in connection with G.R. Case No.2594 of 2019 pending in the file of learned S.D.J.M., Sadar, Sambalpur corresponding to Burla P.S. Case No.300 of 2019 on the ground that the same is not tenable in law since the disciplinary action initiated led to his exoneration from the charges levelled against him.

2. On the basis of an FIR lodged by the informant, Burla P.S. Case No.300 of 2019 was registered under Sections 341, 506 and 186 read with 34 IPC which corresponds to G.R. Case No.2594 of 2019 pending before the learned court below. The prosecution case is that the petitioner and an associate forcibly entered into a meeting place with few others and forced to stop the said meeting and abused the informant and another using unparliamentarily language questioning the latter as to why they have involved the faculty members for admission work of Under- Graduate and Post-Graduate students for an academic year.

Prof (Dr.) Pusparaj Dash Vrs. State of Odisha and Another

3. Heard Mr. Mishra, learned counsel for the petitioner and Mr. Mohapatra, learned counsel for the State-opposite party No.1. None appears for opposite party No.2.

4. Mr. Mishra, learned counsel for the petitioner submits that a story was cooked up against the petitioner, who was by then a Professor in the Department of Mechanical Engineering of Veer Surendra Sai University of Technology (VSSUT), Burla. It is further submitted that the petitioner was also elected as the President of the VSSUT Teachers' Association. It is stated that the Teacher's Association questioned decision of the Board of Management and after due notice, a protest was held. However, it is finally submitted that for the alleged incident, the petitioner was subjected to a disciplinary action vide Memorandum dated 14th September, 2019 and was even placed under suspension but then finally he was exonerated and hence, the criminal proceeding on the self-same charges would be an abuse of process of law and therefore, it should be quashed in view of this Court's decision in Dr. Minaketan Pani Vrs. State of Orissa 2022 (II) OLR 104 wherein, it has been held that where on the same charges, there is exoneration with a lower standard of proof needed to establish it, the same would obviously be not made out since a higher standard of proof is required in a criminal case.

5. Mr. Mohapatra, learned counsel for opposite Party No.1, on the other hand, submits that exoneration from a departmental proceeding cannot be a ground to terminate criminal prosecution wherein the charges are to be independently considered. The incident has happened during which the petitioner and another allegedly committed the mischief for which the informant lodged the report and hence, according to Mr. Mohapatra, learned counsel for the State, the criminal proceeding cannot be quashed as has been prayed for by the other side.

Prof (Dr.) Pusparaj Dash Vrs. State of Odisha and Another

6. Gone through the contents of the FIR as at Annexure-1. On a bare reading of Annexure-1, it is made to understand that the alleged incident took place on 5th August, 2019 and during and in course of events, the petitioner and an Assistant Professor forcibly made their entry into a meeting place with others and committed the overt acts and also stopped the admission work for the Under-Graduate and Post-Graduate students. Mr. Mishra, learned counsel for the petitioner referred to the Memorandum of Charge under Annexure-2 and the enquiry report of the Departmental Proceeding as at Annexure-3 to contend that in respect of all the charges including the one for the alleged incident could not be established and hence, therefore, when the petitioner has an honourable exit, the criminal proceeding should be brought to an end which is the settled law reiterated in Dr. Minaketan Pani (supra) following the judgment of the Apex Court in Radheshyam Kejriwal Vrs. State of West Bengal (2011) 3 SCC 581 and Ashoo Surendranath Vrs. DSP, EOW, CBI 2020 (II) OLR (SC) 736.

7. The question is, whether, the criminal prosecution vis-à-vis the petitioner is to be quashed due to his exoneration from the charges levelled in the disciplinary proceeding? The law well settled that a disciplinary action is independent and exclusive and can continue irrespective of a criminal action and vice versa. The outcome of the disciplinary proceeding is not to influence the result in a criminal trial. So to say, the action under the law to penalize an offender and also to departmentally proceed against him is independent of each other. In the present case, the Court is to examine, whether, in the facts and circumstances of the case, after exoneration in departmental enquiry, the petitioner should still be subjected to a criminal action. In Dr. Minaketan Pani (supra), this Court while dealing with an allegation of tampering of marks held and concluded that there was no direct

Prof (Dr.) Pusparaj Dash Vrs. State of Odisha and Another

involvement of the petitioner, who was censured though the major charges could not be established and there the period of suspension was treated as duty. It was a case of manipulation of marks in respect of an examination of HSC of the year 2007 and therein, the petitioner, who was the Secretary, Board of Secondary Education, Orissa was made to face the enquiry and for having no direct role to play was exonerated of the main charges although censured and in that background, the Court concluded that with lessor standard of proof, the charges could not be established in enquiry on same set of facts, whereas, higher standard of proof is needed for a criminal case, it would not be justified to subject the petitioner to face the criminal trial. It was held therein that the petitioner despite being censured was honourably exonerated in the Departmental Proceeding.

8. The decision in State (NCT of Delhi) Vrs. Ajay Kumar Tyagi 2012 (9) SCC 685 failed to take note of the judgment of a Coordinate Bench in Radheshyam Kejriwal (supra) and therefore, in Dr. Minaketan Pani (supra), the Court held that the said decision should be considered as per incuriam in view of the law enunciated by the Apex Court in Central Board of Dawoodi Bohra Community Vrs. State of Maharashtra AIR 2005 SC 752 and State of Assam Vrs. Ripa Sharma AIR 2013 SC 3588. There is no quarrel over the legal position that the latter judgment of the Coordinate Bench cannot be sustained when it failed to take judicial notice of an earlier decision of another Bench of same composition. In Radheshyam Kejriwal and Ashoo Surendranath Tiwari (supra), the conclusion which has been reached at is that the exoneration in the departmental proceeding seized with same facts would result in the quashing of the criminal case on same charges since it entail a higher standard of proof. In other words, as reiterated in Dr. Minaketan Pani (supra), if on a lower standard

Prof (Dr.) Pusparaj Dash Vrs. State of Odisha and Another

of proof, the charges were not made out, it obviously would not be conceivable to establish it in a criminal trial for which a higher standard of proof is necessary. So, the principle is that if there is an honourable exit, which means after consideration of the evidence in detail received during a departmental enquiry, it is found by the Authority that the charges could not be established or the department miserably failed to prove it, in such a situation, since there is a remote possibility of any evidence to resurface during criminal trial where standard of proof is higher, it should not be allowed to continue which would result in abuse of process of the court.

9. In the case at hand, a copy of the Memorandum is at Annexure-2. The Court perused the charges framed against the petitioner. It contains Article of Charges under Annexures-I & II which included the alleged incident dated 5th August, 2009 vide Charge No.3. The allegation in Annexure-1 is related to the said charge and the incident involving the petitioner and another of having committed the excess. The enquiry report (Annexure-3) is also perused by the Court and it is made to appear that the witnesses were examined and it was finally concluded that charge could not be established as against the evidence that the petitioner and other faculty members came to the Examination Section and requested to close the meeting and during that time, the meeting was about to finish and no unpleasant incident happened which has been recorded in DOS No.9, dated 03.08.2021 (Exhibit No.7) and that after obtaining the proceedings of the meeting held on 05.08.2019, it was verified and found that the meeting was held successfully and both the Deans of PGS&R and Academic Affairs signed therein.

10. The incident was reported and it was with regard to the involvement of the petitioner, who was alleged of forcibly

Prof (Dr.) Pusparaj Dash Vrs. State of Odisha and Another

entering into the meeting place and for having caused the excess. However during enquiry, it was revealed that no untoward incident happened which was also placed on record. The only revelation during the enquiry was that the petitioner and other faculty members had been to the Examination Section and requested to close the meeting. In view of the nature of evidence received and when the material witness did not support the charge and ever claimed about any such incident to have taken place with the participation of the petitioner which ultimately resulted in the charge not being established after a departmental enquiry, it can be safely concluded that there has been an honourable exoneration and if such is the evidence received in the departmental proceeding, there is also a bleak chance of his conviction. The departmental enquiry was conducted not only for the incident but for other misconduct and finally the conclusion was that the charges vis-a-vis the petitioner could not be established on examination of the evidence which included the statement of witnesses besides material supplied with photographs and videos with an observation that there was a mass strike of faculty members during that time and consequent upon such exoneration from all the charges, his period of suspension was treated as duty with the direction for release of all financial and service benefits to him which was withheld earlier. Thus, having regard to the evidence on record received during departmental enquiry, since the charge related to the incident could not be proved as there was no any allegation of misconduct established, the petitioner can be well said to be honourably exonerated. There is most unlikely any evidence to be received during the criminal trial to prove the alleged offence as the same could not be substantiated when the materials suggested otherwise. So therefore the law laid down in Ashoo Surendranath and

Prof (Dr.) Pusparaj Dash Vrs. State of Odisha and Another

Radheshyam Kejriwal (supra) followed in Dr. Minaketan Pani (supra) squarely applies to the case at hand.

11. Accordingly, it is ordered.

12. In the result, the CRLMC stands allowed. As a corollary, the criminal proceeding in connection with G.R. Case No.2594 of 2019 pending in the file of learned S.D.J.M., Sadar, Sambalpur corresponding to Burla P.S. Case No.300 of 2019 is hereby quashed for the reasons as aforesaid.

(R.K. Pattanaik) Judge