Brajakishore Sethy vs State Of Odisha & Ors
2023 Latest Caselaw 1 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                           WPC(OAC) No.872 of 2019

        Brajakishore Sethy                  ....                Petitioner

                                           -versus-

        State of Odisha & Ors.              ....               Opposite Parties


                           CONTC(CPC) No.159 of 2019

        Brajakishore Sethi                  ....                Petitioner

                                          -versus-

        Ajaya Kumar Sethi, Exe. Engg.,      ....                Opposite Party
        Quality Control Division



                           CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                     ORDER

02.01.2023 Order No

08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. It is contended that the Petitioner joined in service as a Peon on 10.12.1981. While continuing as such he was placed under suspension w.e.f.17.11.1995 vide order under Annexure-1 dtd.22.11.1995 because of his implication in G.R. Case No. 1976 of 1995 arising out of Mangalabag P.S. Case No. 288 of 1995 dtd.17.11.1995.

2.1. It is contended that the Petitioner when was convicted in the said criminal proceeding vide Judgment dtd.20.10.1998 by the // 2 //

learned J.M.F.C., Cuttack, the Petitioner preferred an appeal in Criminal Appeal No. 81 of 1998. The said appeal when was dismissed vide Judgment dtd.08.02.2002, the Petitioner approached this Court in CRLREV No. 478 of 2002. This Court vide Judgment dtd.18.08.2011 under Annexure-2 disposed of the said Revision with the following order:-

"This revision is directed against the judgment dated 8.2.2002 passed by learned 1 Addl. Sessions Judge, Cuttack in Crl. Appeal No.81 of 1998 confirming the judgment dated 20.10.1998 passed by learned JMFC, Cuttack in G.R. Case No.1976/95/Trial No.79/97, whereby the petitioner was convicted under Section 323, I.P.C. and sentenced to pay a fine of Rs.300/-, in default to undergo S.I. for one month.

2. Since the facts of the case have been recapitulated by the courts below in detail in the judgments passed by them, therefore, in order to avoid repetition, the same are not being reproduced herein.

3. Heard learned counsel for the parties and also gone through the findings recorded by the courts below.

4. Learned counsel appearing for the petitioner has submitted that the petitioner is now aged about 61 years and he being the first offender and no previous conviction is made out against him, he be released on probation under Section 4 of the Probation of Offender Act, 1958. He further submitted that there is nothing against his character and antecedents on the record, and that he is a family man and was on bail throughout during the trial and first appellate stage. The offence was committed in the year 1995 and more than 15 years have elapsed in the meantime. The courts below did not give him the benefit of probation.

5. To my mind, the Probation of Offender's Act is intended to reform the offenders, where it is possible by giving them the benefit of probation. However, the benefit of probation can be denied by the Court after recording special reasons. Moreover, learned counsel for the petitioner is not challenging the order of conviction of the petitioner. He has only prayed that the petitioner is the only earning member of his family and the family will suffer heavily if he is sent to jail.

6. It is incumbent upon the Courts to give benefit of probation when the offenders are entitled to under Section 4 of the Probation of Offenders Act unless the Court finds that the convicts are incorrigible and cannot be reformed. The object of

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punishment is not only to be retributive but also to be reformative. Keeping in view the aforesaid principles, the petitioner is given one chance to reform himself.

7. In the result, the revision is dismissed and the conviction of the petitioner is upheld. But instead of sentencing him to suffer any punishment, I direct that the petitioner be released under Section 4 of the Probation of Offenders Act, 1958 for a period of one year on his executing a bond of Rs.5,000/- with two sureties each for the like amount to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behavior. The petitioner shall remain under the supervision of the concerned Probation Officer during the aforesaid period.

8. The petitioner shall not suffer any disqualification on account of conviction of the petitioner on the aforesaid case."

2.2. It is contended that subsequent to the order passed by this Court in Criminal Revision No. 478 of 2002, the Petitioner when approached the Authority for his reinstatement, he was reinstated in his service vide order dtd.26.02.2018 under Annexure-7. After his reinstatement when the Petitioner prayed for regularization of the period for suspension, the Petitioner was issued with the impugned show-cause notice dtd.06.04.2019 under Annexure-14 proposing therein to impose the punishment of dismissal. The Petitioner challenging the same approached the Tribunal in O.A. No. 872(C) of 2019. The Tribunal while issuing notice of the matter on 16.04.2019 passed an interim order staying the operation of the order at Annexure-12 & 14. In spite of such interim order passed by the Tribunal when the Petitioner was dismissed from his service vide order dtd.24.04.2019, the Petitioner filed CONTC No. 159 of 2019.

2.3. Learned counsel for the Petitioner contended that since the interim order dtd.16.04.2019 was passed in presence of the learned State Counsel, it is to be held that the said order has been passed in presence of the Authority concerned and the plea taken by the Opp.

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Parties that they were not communicated with the order dtd.16.04.2019 is not a plea to pass the order of dismissal.

2.4. Mr. Mallik, learned counsel for the Petitioner in support of his aforesaid submission relied on a decision of the Hon'ble Apex Court in the case of All Bengal Excise Licensees' Association Vs. Raghabendra Singh & Ors. ((2007) 11 SCC 374). Hon'ble Apex Court in Para 4, 23, 25, 27 & 32(6) of the said Judgment has held as follows:-

"4. The background facts are as under:

By an order dated 4-1-2005, a learned Single Judge passed an interim order to the effect that the respondent authorities will be at liberty to process the applications in respect of grant of licences for excise shops but no final selection in respect of such shops shall be made without obtaining specific leave of the Court. The High Court made it clear that the respondent authorities will not hold any lottery for the purpose of final selection of the excise shops in question without obtaining further orders from the High Court. The said order dated 4-1- 2005 was passed after hearing and in the presence of the learned advocate for the respondents. The said interim order dated 4-1-2005 was extended by the order dated 19-1-2005 until further orders by the High Court. Thereafter, on 20-1- 2005 a learned Single Judge gave direction for filing the affidavit and the said interim order was further extended until further orders and the said interim order is still continuing.

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             23. We        dismissed       all      applications      for

impleadments/intervention on 21-2-2007 and heard the arguments of the appellants on merits. Elaborate and lengthy submissions were made by the respective parties with reference to the entire pleadings and various orders passed by the High Court and of this Court and also other annexures and case-

laws. The learned Senior Counsel appearing for the appellant submitted that in view of the finding of the learned Judge "that there is no doubt that alleged contemnor have disobeyed the specific direction passed earlier by this Bench", the learned Judge of the High Court was not justified in holding that the alleged contemnor committed mistake by not realising the implication of the order passed by the High Court which remained operative at the relevant time and on that basis dismissing the application for contempt without making any

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order for restoration of the status quo ante to undo the mischief caused by such violation of the interim order. According to the learned Senior Counsel for the appellant, the impugned order is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent/contemnors in contumacious disregard of the orders of the High Court should not be permitted to hold. Likewise, the High Court also committed a grievous error of law in holding that the alleged contemnors did not understand the implication and consequences of a prohibitory order passed in an independent proceeding and by sheer misconception thought that there is no bar to issue excise licences in view of the orders dated 15-3-2005 and 18-3-2005 by two different Division Benches of the High Court. In support of their contention, they cited the following rulings:

(1) Kapildeo Prasad Sah v. State of Bihar (2) Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd.

(3) Eastern Trust Co. v. MaKenzie Mann & Co. Ltd.

(4) Anil Ratan Sarkar v. Hirak Ghosh (5) All India Regional Rural Bank Officers' Federation v. Govt. of India (6) Ravi S. Naik v. Union of India [1994 Supp (2) SCC 641] (7) Surjit Singh v. Harbans Singh (8) T.M.A. Pai Foundation v. State of Karnataka (9) Vidya Charan Shukla v. T.N. Olympic Assn. (10) Century Flour Mills Ltd. v. S. Suppiah

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25. We have carefully considered the rival submissions made by the learned Senior Counsel appearing for the respective parties. It is not in dispute that an injunction order was passed on 4-1-2005 and on subsequent extension is still subsisting. Respondents 1-4 admittedly are highly qualified and highly placed government officials. Admittedly, by advocate's letter dated 15-3-2005, it was pointed out to them that the injunction order dated 4-1-2005 and its subsequent extensions are still subsisting. They have also acknowledged the receipt of the communication dated 15-3-2005. Under such circumstances, the High Court is not justified in holding that the highly qualified and well-placed government officials did not understand the implication and/or consequence of prohibitory order in an independent proceedings and by sheer misconception thought that there is no bar to issue excise

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licences as was held by the learned Judge in the impugned order.

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27. Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by cancelling the lottery wrongfully held by them. The learned Judge found that the respondent contemnors had held the lottery in violation of the Court's order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of licence. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby.

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32(6). Ravi S. Naik v. Union of India, SCC pp. 661-63, paras 40 & 42 "40. We will first examine whether Bandekar and Chopdekar could be excluded from the group on the basis of order dated December 13, 1990 holding that they stood disqualified as members of the Goa Legislative Assembly. The said two members had filed Writ Petition No. 321 of 1990 in the Bombay High Court wherein they challenged the validity of the said order of disqualification and by order dated December 14, 1990 passed in the said writ petition the High Court had stayed the operation of the said order of disqualification dated December 13, 1990 passed by the Speaker. The effect of the stay of the operation of the order of disqualification dated December 13, 1990 was that with effect from December 14, 1990 the declaration that Bandekar and Chopdekar were disqualified from being members of Goa Legislative Assembly under order dated December 13, 1990 was not operative and on December 24, 1990, the date of the alleged split, it could not be said that they were not members of Goa Legislative Assembly. One of the reasons given by the Speaker for not giving effect to the stay order passed by the High Court on December 14, 1990, was that the said order came after the order of disqualification was issued by him. We are unable to appreciate this reason. Since the said order was passed in a writ petition challenging the

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validity of the order dated December 13, 1990 passed by the Speaker it, obviously, had to come after the order of disqualification was issued by the Speaker. The other reason given by the Speaker was that Parliament had held that the Speaker's order cannot be a subject-matter of court proceedings and his decision is final as far as Tenth Schedule of the Constitution is concerned. The said reason is also unsustainable in law. As to whether the order of the Speaker could be a subject-matter of court proceedings and whether his decision was final were questions involving the interpretation of the provisions contained in Tenth Schedule to the Constitution. On the date of the passing of the stay order dated December 14, 1990, the said questions were pending consideration before this Court. In the absence of an authoritative pronouncement by this Court the stay order passed by the High Court could not be ignored by the Speaker on the view that his order could not be a subject-matter of court proceedings and his decision was final. It is settled law that an order, even though interim in nature, is binding till it is set aside by a competent court and it cannot be ignored on the ground that the court which passed the order had no jurisdiction to pass the same. Moreover the stay order was passed by the High Court which is a superior court of record and 'in the case of a superior court of record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction'. (See Powers, Privileges and Immunities of State Legislatures, Re [AIR 1965 SC 745 : (1965) 1 SCR 413] , SCR at p. 499.) ***

42. In Mulraj v. Murti Raghonathji Maharaj [AIR 1967 SC 1386 : (1967) 3 SCR 84] this Court has dealt with effect of a stay order passed by a court and has laid down: (AIR p. 1389, para 8) 'In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an

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order of injunction to a party and an order of stay to a court.' This would mean that the Speaker was bound by the stay order passed by the High Court on December 14, 1990 and any action taken by him in disregard of the said stay order was a nullity. In the instant case the Speaker, in passing the order dated February 15, 1991 relating to disqualification, treated Bandekar and Chopdekar as disqualified members. This action of the Speaker was in disregard of the stay order dated December 14, 1990 passed by the Bombay High Court."

2.5. Mr. Mallik, learned counsel for the Petitioner also relied on another decision of this Court with regard to the implication of release of an accused under the Probation Of Offenders' Act and the meaning thereof. In Para 6 & 7 of the said Judgment this Court has held as follows:-

"6. Section 12 of the P.O. Act provides that "Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law." In the aforesaid case, the Apex Court held that the words "attaching to a conviction for an offence under such law" refer to two contingencies: (1) that there must be a disqualification resulting a conviction and (ii) that such disqualification must be provided by some law other than the P.O. Act. The Indian Penal Code does not contain any such disqualification. Therefore, it cannot be said that Section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused, It also manifest that disqualification is essentially different from the context of misconduct. Disqualification cannot be an automatic consequence of the conduct unless the statutes requires so. Proof of misconduct may or may not lead to disqualification, because this matter rests on facts

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and circumstances of that case or the language in which the particular statute is covered.

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7. Article 311 of the Constitution of India at Clause (2) provides that "No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges." In the second proviso to the clause. it is laid down that this clause shall not apply to a person dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge and on some other situations, which are not relevant for this case. Thus, sub-clause (a) of second proviso to Clause (2) of Article 311 of the Constitution provides that whenever a person is convicted on a criminal charge, he can be dismissed or removed or reduced in rank of the ground of his conduct which has fed to his conviction on a criminal charge. This is an enabling provision, which does not disqualify the employee on such conviction. It only empowers the employer to remove him from service or include some major penalty without conducting a disciplinary proceeding."

2.6. Mr. Mallik also contended that while disposing Criminal Revision No. 478 of 2022, this Court also observed that the Petitioner shall not suffer any disqualification on account of his conviction in the aforesaid case. It is accordingly contended that in view of the interim order passed by the Tribunal on 16.04.2019, the Petitioner could not have been dismissed from his service vide order dtd.24.04.2019 and in view of such order of dismissal the Petitioner was deprived from getting the retiral benefit as in the

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meantime the Petitioner has attained the age of superannuation on 30.11.2020.

3. Mr. M.K. Balabantaray, learned AGA on the other hand made his submission basing on the stand taken in the counter as well as the show-cause filed in the Contempt Petition. It is contended that since the O.P. No. 4 received the interim order passed by the Tribunal on 16.04.2019 only on 26.04.2019, but by that time, the Petitioner was already dismissed from service vide order dtd.24.04.2019 under Annexure-A/4. The said order was also passed in terms of Rule 18 of OCS (CCA) Rules, 1962 read with Art. 311(2) of the Constitution of India, which provides for dismissal or removal of a person without conducting any enquiry. Accordingly, it is contended that the order of dismissal has been rightly passed on 24.04.2019 under Annexure-A/4 taking recourse to the provision under Rule 18.

4. I have heard Mr. S. Mallik, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned AGA appearing for the Opp. Parties. On the consent of the learned counsels appearing for the Parties, the matter was taken up for disposal at the stage of admission.

5. Having heard learned counsel for the Parties and taking into account the materials available on record as well as the decisions relied on by Mr. Mallik, in view of the order passed by the Tribunal on 16.04.2019 in presence of the learned State counsel, the plea taken by the Opp. Parties that they had no knowledge about the same, when the order of dismissal was passed by O.P. No. 4 on 24.04.2019 cannot be accepted. On the face of such order passed on 16.04.2019, O.P. No. 4 should not have dismissed the Petitioner

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from his service vide order dt.24.04.2019. Therefore, this Court is inclined to quash the order of dismissal passed against the Petitioner on 24.04.2019. While quashing the same and taking into account the fact that the Petitioner in the meantime has attained the age of superannuation on 30.11.2020, this Court directs the Opp. Parties to take step for regularization of the period of suspension as well as the period from the date of dismissal till the date of attaining the age of superannuation on notional basis. This Court further directs the Opp. Party to sanction and disburse the pension & other pensionary benefits as due and admissible by taking the date of superannuation of the Petitioner as 30.11.2020. The entire exercise shall be completed within a period of three (3) months from the date of receipt of this order.

6. Both the writ petition and contempt petition are disposed of accordingly.

(Biraja Prasanna Satapathy) Judge

Sneha