Sujit Kumar Behera vs D.G And I.G Of Police &
2023 Latest Caselaw 59 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          WPC(OAC) No.199 of 2018

        In the matter of an application under Section 19
             of the Administrative Tribunals' Act, 1985.
                            ..................

      Sujit Kumar Behera                   ....                 Petitioner


                                    -versus-


      D.G and I.G of Police &              ....         Opposite Parties
      Others


              For Petitioner            :M/s. G.R. Sethi, Advocate

              For Opp. Parties          :M/s. M.K. Balabantaray,
                                         Standing Counsel



       PRESENT:
        THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
     -----------------------------------------------------------------------------
      Date of Hearing: 21.12.2022 and Date of Order: 03.01.2023
     -----------------------------------------------------------------------------



Biraja Prasanna Satapathy, J.

The Present Writ Petition has been filed by the

Petitioner challenging the order dated 09.08.2016 passed

under Annexure-5 and subsequent order passed by the

appellate authority on 18.11.2017 under Annexure-7 as // 2 //

well as by the revisional authority on 23.10.2017 under

Annexure-9.

2. The factual matrix giving rise to the filing of the

present writ petition is that the petitioner while

continuing as a Constable in Angul District, he was

proceeded with a disciplinary proceeding vide Angul

District Proceeding No.27 dated 24.11.2014 under

Annexure-1.

Though the petitioner submitted his explanation to

the charges, but Opposite Party no.3 while appointing

the Enquiry Officer as well as the Marshalling Officer

directed for conduct of the enquiry against the petitioner.

Even though the Enquiry Officer while causing the

enquiry did not find any material against the petitioner,

but without any basis submitted the enquiry report on

20.04.2016 under Annexure-2 by holding the petitioner

guilty of the charges. The petitioner though submitted

his reply to the said enquiry report while making his

reply to the first show-cause under Annexure-3, but

Opposite Party No.3 without proper appreciation of the

// 3 //

same, issued the second show-cause by proposing

punishment of one black mark.

2.1. The Petitioner on receipt of the second show-

cause though gave a detailed reply, but the Opposite

Party No.3 once again without proper appreciation of the

same, passed the order of punishment vide order dated

09.08.2016 under Annexure-5. The petitioner thereafter

preferred an appeal before Opposite Party No.2 under

Annexure-6. But the said authority rejected the appeal

vide his order dated 4817 under Annexure-7. The

Petitioner though preferred a revision before Opposite

Party no.1 under Annexure-8, but the revisional

authority as like the appellate authority, also rejected the

revision vide order passed on 23.10.2017 under

Annexure-9.

3. It is the main contention of the learned counsel

for the Petitioner that the proceeding against the

petitioner was initiated under Anenxure-1 on 24.11.2014

because of his implication in a criminal case in Angul

Colliery P.S. Case No.240 dated 19.09.2014 under

// 4 //

Sections 452,435/506 of the Indian Penal Code. In the

said criminal case, the petitioner was charged with the

allegation that he came to the house of the complainant

Ranjit Singh and lid fire to his motorcycle bearing Regd.

No.OR-19 C 4326 and threatened the complainant's

family members to kill them unless they withdrew the

case filed by the complainant's sister Smt. Kusuma Devi

in Angul Colliery P.S. Case No.155 of 2014.

3.1 It is contended that even though the proceeding

against the petitioner was initiated basing on the

allegation made in the aforesaid Colliery P.S. Case

No.240 dated 19.09.2014 as well as Colliery P.S. Case

No.155 of 2014, but the petitioner was acquitted in both

the proceeding vide judgement dated 03.06.2015 in G.R.

Case No.865 of 2014 arising out of Colliery P.S. Case

No.240 of 2014 and G.R. Case No.537 of 2014 arising

out of Colliery P.S. Case No.155 of 2014 under

Annexure-10 series. Learned counsel for the petitioner

vehemently contended that since prior to disposal of the

disciplinary proceeding, the petitioner was already

// 5 //

acquitted in both the criminal proceedings vide judgment

dated 3.06.2016 under Annexure-10 series, the

petitioner should not have been inflicted with the

punishment vide order under Annexure-5 on

09.08.2016, which is much after the order of acquittal

passed against him.

3.2 It is also contended that though the factum of

acquittal was brought to the notice of the appellate

authority as well as the revisional authority with the plea

that the charges in the disciplinary proceeding was

issued only because of the implication of the petitioner in

both the criminal cases, from which he has been

acquitted and accordingly the petitioner should not have

been imposed with the order of punishment, but the

appellate authority as well as the revisional authority

without proper appreciation of the said plea, dismissed

the appeal as well as revision by confirming the order of

punishment passed under Annexure-5. It is also

contended that since the petitioner was acquitted in both

the criminal proceedings vide judgement under

// 6 //

Annexure-10 series, the complainant Ranjit Singh, in

order to harass the petitioner tried to prove his allegation

before the enquiry officer and basing on the said

deposition of the informant in the F.I.R, the Enquiry

Officer held the petitioner guilty of the charges.

3.3. It is however contended that the self-same

informant who also deposed in both the criminal

proceedings, his evidence was not accepted by the

learned SDJM while acquitting the petitioner from the

charges. Hence, the evidence of the said informant

should not have been accepted by the enquiry officer as

well as by the disciplinary authority.

Since the charges in both the criminal proceeding

and disciplinary proceeding are same, in view of acquittal

in the criminal proceeding, no order of punishment

should have been passed by the disciplinary authority.

3.4. Mr. G.R. Sethi, learned counsel for the

Petitioner in support of his aforesaid submission relied

on a decision of this Court reported in 110 (2010) CLT

// 7 //

501. This Court in Para 14 of the said judgment has held

as follows:

"14. "Misappropriation" is a criminal offence, prescribed under Section 403 of the I.P.C., which mandates that whoever dishonestly misappropriates or converts to his own use any movable property is liable to be prosecuted for "Misappropriation". Although, the present case arises from a disciplinary proceeding, although the Petitioner has admitted, loss to the Government exchequer, but the F.I.R filed by him & the investigation thereto, having been completed by the police, with the conclusion that the "facts true", but Final Report having been submitted, that there was "no clue" available to apprehend the accused, the said benefit has to enure to the benefit of the Petitioner. No doubt a disciplinary proceeding may continue independent of the criminal proceeding. Yet when the nature of the charge is criminal in nature, the disciplinary authority would be bound by the findings arrived at in the criminal case. It is well settled by the Hon'ble Supreme Court in the case of Cap. M. Paul Anthony v. Bharat God Mines Ltd & another reported in AIR 1999 SC 1416:

"Departmental proceedings & criminal case-Based on identical set of facts-Evidence in both proceedings common-Employee acquitted in criminal case-Said order of acquittal can conclude departmental proceedings. Order of dismissal already passed before decision of criminal case liable to be set aside."

3.5. Similarly, learned counsel for the petitioner

relied on another decision of this Court reported in 2022

(Suppl.) OLR 875. This Court in Para 6 of the said

judgment has held as follows:

"6. Thus, from a conspectus of the ration of aforementioned case, it is evident that if a person is honourably acquitted from the charges in the criminal case, continuance of the disciplinary proceeding on the self-same charges would not be proper. In the instant case, however final report true was submitted for

// 8 //

insufficient evidence specifically on the ground that the tainted G.C. notes had not been recovered. Obviously, this cannot be treated as being akin to an honourable acquittal in a criminal case where the concerned court exonerates the accused from all charges basing on the evidence on record. This Court, therefore, finds no merit in the contentions advanced by the Petitioner challenging the initiation and continuance of the disciplinarily proceeding despite submission of final report in the Vigilance case.

3.6. Mr. Sethi, learned counsel for the petitioner

accordingly contended that in view of the decisions of

this Court, which have been passed taking into the

decision of the Hon'ble Apex Court in the case of G.M.

Tank Vs. State of Gujarat as well as Captain M. Paul

Anthony Vs. Bharat Gold Mines Ltd., punishment passed

against the petitioner in the Disciplinary Proceeding

under Amnnexure-5 and confirmed vide order passed

under Annexure-7 & 9 cannot sustain legally security

and liable for interference of this Court.

4. Mr. M.K. Balabantaray, learned Standing

Counsel appearing for the State-Opposite Parties on the

other hand made his submission basing on the stand

taken in the counter affidavit filed by Opposite Party

no.3.

// 9 //

4.1. It is contended that during course of enquiry

and while recording the statement of the informants in

both the criminal cases, namely, Ranjit Singh and

Kusuma Devi, being examined as P.Ws. 2 & 3, they

proved the charges against the petitioner. Hence, there

was no occasion on the part of the Disciplinary authority

to accept the plea of the petitioner regarding his acquittal

in the criminal cases. It is also contended that

proceeding against the petitioner has been strictly

conducted in accordance with the provision contained

under Rule 15 of the OCS (CCA) Rules and there is no

violation of any of the provision. Therefore, the petitioner

has been rightly punished with imposition of the

punishment vide order under Annexure-5. The appellate

authority as well as the revisional authority taking into

account the materials produced during the enquiry,

upheld the order of punishment while dismissing the

appeal vide order at Annexures-7 & 9.

5. I have heard Mr. G.R. Sethi, learned counsel

appearing for the Petitioner and Mr. M.K. Balabantaray,

// 10 //

learned Standing Counsel appearing for the Opposite

Parties. On the consent of the learned counsel appearing

for the parties, the matter was taken up for disposal at

the stage of admission.

06. Having heard learned counsel for the

parties and after going through the materials available on

record, this Court finds that the petitioner was proceeded

with the charges in the Departmental Proceeding

initiated under Annexure-1 because of his implication in

Colliery P.S. Case No.240 dated 19.09.2014 and so also

in Colliery P.S. Case No.155 of 2014. While in Colliery

P.S. Case No.240 of 2014, the informant was one Ranjit

Singh, in the other Criminal case i.e. Colliery P.S. Case

No.155 of 2014, one Kusuma Devi was the informant.

Prior to completion of the enquiry, the petitioner faced

the trial in both the cases before the learned S.D.J.M,

Talcher in G.R. Case No.865 of 2014 and 537 of 2014.

Since the prosecution could not prove the charges

against the petitioner, the petitioner was acquitted of all

the charges and was set at liberty vide judgment dated

// 11 //

03.06.2015 under Annexure-10 series. Since the

informant in both the cases are the P.W.2 & 3 in

Disciplinary Proceeding, their statement should not have

been believed In view of the fact that the competent

Criminal Court did not believe their statements taken on

oath. Not only that since the petitioner was proceeded in

the Disciplinary proceeding because of his implication in

the criminal case, in view of his acquittal in both the

cases, placing reliance of the decision of this Court as

cited supra, no order of punishment should have been

imposed against the petitioner. Therefore, this Court is

of the view that the order of punishment has been passed

in violation of the ratio decided by this Court relying on

the view of the Hon'ble Apex Court in the case of G.M

Tank Vs. State of Gujarat as well as Captain M. Paul

Anthony Vs. Bharat Gold Mines Ltd.

6.1. Taking into account the view of this Court as

cited supra, Apex Court which has been followed by this

Court, I am inclined to held that the order of punishment

passed against the petitioner under Annexure-5 and

// 12 //

confirmed vide orders passed by the appellate authority

under Annexure-7 and by the Revisional Authority under

Anneuxre-9 are not legally sustainable. Therefore, this

Court is inclined to quash the order under Annexure-5, 7

& 9. While quashing the same, this Court allows the writ

petition. However, there shall be no order as to costs.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 3rd January, 2023/sangita