Rupdhar Naik vs State Of Odisha & Others
2023 Latest Caselaw 5381 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) (OAC) No.1213 of 2011


         Rupdhar Naik                    ....    Petitioner
                                               Mr.S. Mallick, Advocate

                                        -versus-

         State of Odisha & Others        ....    Opposite Parties
                                               Mr. B. Panigrahi, ASC



                           COROM:
                JUSTICE BIRAJA PRASANNA SATAPATHY

                                   ORDER

08.05.2023 Order No

08. 1. This matter is taken up through Hybrid Mode.

2. Heard Mr. S. Mallick, learned counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel for the State.

3. The Petitioner has filed the present Writ Petition challenging the order of punishment so passed by Opposite Party No.3 vide order dated 23.11.2005 under Annexure-12 and confirmed by the appellate authority Opposite Party No.2 vide order dated 21.10.2010 under Annexure-14.

4. Learned counsel for the Petitioner contended that while continuing as Sub-Inspector of Police, Phulbani P.S, basing on the complaint made by the accused in Phulbani P.S. No.27 of 1995 before the National Human Rights Commission ( in short 'Commission') vide Complaint No.1318/95-96, explanation was called for from the Petitioner by the Superintendent of Police, Phulbani on 24.02.1996 under Annexure-1. Even though, Petitioner // 2 //

submitted his explanation on 29.02.1996 under Annexure- 2 and enquiry report was submitted by the Superintendent of Police vide letter dated 20.05.1996 under Annexure-5, but the Commission passed the final order in the complaint so filed by the accused in Phulbani P.S. Case No.27 of 1995 on dated 06.12.1999 under Annexure-2. The Commission specifically directed for initiation of a disciplinary proceeding against the then S.P. of Police, Phulbani and to register a case against the Petitioner and the then Inspector of Police Sri B.P. Mohapatra.

4.1. It is contended that though the Commission suggested for initiation of a disciplinary proceeding against the Superintendent of Police and to register a case against of the Petitioner and the then Inspector of Police, but the Petitioner was not only implicated in a criminal proceeding in Phulbani Sadar P.S. Case No.34 of 2001 corresponding to G.R. Case No.139 of 2001 in the file of learned S.D.J.M., Phulbani, but also a departmental proceeding was initiated against the Petitioner vide Memorandum dated 19.01.2001 under Annexure-5.

4.2. It is contended that in the departmental proceeding though the Petitioner duly participated by filing his written statement of defence, but the Opposite Party No.3 without proper appreciation of the reply passed the final order by imposing punishment of two black marks and recovery of Rs.50,000/- from the Petitioner vide order dated 23.11.2005 under Annexure-12.

4.3. It is contended that even though in the meantime the Petitioner was duly acquitted in G.R. Case No.139 of 2001 by the learned S.D.J.M., Phulbani vide judgment dated

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29.03.2008 and the said fact was brought to the notice of the appellate authority by the Petitioner while preferring his appeal, but the appellate authority-Opposite Party No.2 without proper appreciation of the order of the acquittal so passed in the criminal proceeding dismissed the appeal by confirming the order of punishment so passed by the Opposite Party No.3 vide order dated 21.10.2010 under Annexure-14.

4.4. It is contended that since the Petitioner for the self- same charges was proceeded with in the criminal case in G.R. Case No.139 of 2001 and he was acquitted from the charges, Opposite Party No.2 while considering the appeal without taking into consideration that aspect, mechanically confirmed the order of punishment so passed by the Opposite Party No.3.

4.5. It is also contended that even though National Human Rights Commission directed for initiation of the proceeding against the Superintendent of Police, Phulbani, but after initiating a proceeding against the Superintendent of Police, Phulbani, he was only censured. Whereas the Petitioner on the face of acquittal in the criminal proceeding was imposed with two Black Marks with recovery of Rs.50,000/-. The amount paid to the accused persons in Phulbani P.S. Case No.27 of 1995 in terms of the order passed by the Commission to the extent of Rs.50,000/- was directed to be recovered from the Petitioner only.

4.6. Mr. Mallick contended that in the complaint filed by the accused in Phulbani P.S. Case No.27 of 1995, the Commission found fault with the then S.P. and accordingly

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directed for initiation of a proceeding against the S.P. and to register a case against the Petitioner and the then Inspector of Police Sri B.P. Mohapatra. Even though in terms of the said order that the Petitioner was implicated in the criminal proceeding, but he was also proceeded in the departmental proceeding without any reason or basis. The disciplinary authority as well as appellate authority with mala fide intention and to save the then S.P., Phulbani imposed the order of punishment under Annexure-10 with confirmation of the same vide order at Annexure-14. It is accordingly contended that the orders passed under Annexure-10 and confirmed under Annexure-14 are not sustainable in the eye of law.

5. Mr. Panigrahi, learned Addl. Standing Counsel for the State on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that since pursuant to the direction issued by the Commission, the accused in Phulbani P.S. Case No27 of 1995 was paid compensation of Rs.50,000/- and that is because of the latches of the present petitioner, the disciplinary authority while imposing the order of punishment of 2 Black Mark vide order under Annexure- 10 directed for recovery of the said amount from the Petitioner.

5.1. Mr. Panigrahi, contended that order of acquittal passed in the criminal proceeding has nothing to do with the departmental proceeding and disciplinary authority is free to take his own decision in the matter.

6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court

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finds that the Petitioner was implicated in the criminal proceeding as well as disciplinary proceeding basing on the complaint made by the accused in Phulbani P.S. Case No.27 of 1995.

It is found that pursuant to the direction issued by the Commission though the accused was paid with compensation of Rs.50,000/-, but it is the view of this Court that for such payment of the compensation, the Petitioner cannot be held liable alone while exonerating the Superintendent of Police as well as the then Inspector of Police, Sri B.P. Mohapatra from the liability.

6.1. It is also found that on the self-same allegation, the Petitioner was made an accused in the criminal proceeding. But the prosecution since failed to prove its case, the Petitioner was acquitted vide judgment dated 29.03.2008. But the appellate authority while considering the appeal so filed by the Petitioner against the order of punishment passed under Annexure-10, has not taken into consideration that aspect. It is also found that the appellate authority has not taken consideration the liability of the Petitioner alone to pay the compensation amount. As per the considered view of this Court, the Petitioner cannot be held liable alone for payment of the compensation amount of Rs.50,000/- so paid to the accused in Phulbani P.S. Case No.27 of 1995.

6.2. Since it is found that the appellate authority has not applied his mind which deciding the appeal, this Court is inclined to quash the order dated 21.10.2010 under Annexure-14 for the present. While quashing the same, this Court remits the matter to Opposite Party No.2 to take

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a fresh decision in the appeal. It is observed that while reconsidering the matter, the Opposite Party No.2 shall take into consideration the order of acquittal passed in favour of the Petitioner in G.R. Case No.139 of 2001 as well as the view of this Court as indicated hereinabove in its proper perspective. The appellate authority shall take a fresh decision within a period of three (3) months from the date of receipt of this order.

7. With the aforesaid observations and directions, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Judge Subrat

Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Senior Stenographer Reason: ..

Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-May-2023 10:56:52