Orissa High Court
Raj Kishor Pradhan vs State Of Orissa (Vigilance) on 16 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1736 of 2020
Raj Kishor Pradhan .... Petitioners
Mr. Asok Mohanty, Senior Advocate and
Mr. Satyabrata Panda, Advocate
-Versus-
State of Orissa (Vigilance) .... Opposite Party
Mr. Niranjan Moharana, ASC for Vigilance Dept.
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:16.05.2023
1.
Instant petition under Section 482 Cr.P.C. is at the behest of
the petitioner assailing the impugned order dated 13th November,
2020 passed by the learned Special Judge (Vigilance), Sambalpur
in connection with CTR Case No. 13 of 2013 corresponding to
Sambalpur Vigilance P.S. Case No. 24 of 2010, whereby, an
application under Section 239 Cr.P.C. moved by him for
discharge was declined and rejected.
2. According to the petitioner, he is not a public servant as the
Sambalpur District Central Cooperative Bank Ltd. (herein referred
to as 'SDCCB') does not receive any financial aid from the
Government or established under any Central or State Act or any
Authority or body or company as defined in Section 17 of the
Companies Act and therefore, his prosecution for offences under
Section 13(2) read with 13(1) (d) of the Prevention of the
Corruption Act and Section 120(b) IPC is not maintainable, the
fact which was lost sight of by the learned Special court, while
disposing of the application under Section 239 Cr.P.C. With the
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
above and such other grounds, the petitioner claimed for
exoneration from the charges levelled against him by the
Vigilance Department. However, the learned court below refused
to discharge the petitioner and reached at a conclusion that a
prima facie case is made out against him for enquiry and trial.
3. Heard Mr. Asok Mohanty, learned Senior Advocate appearing
for the petitioner and Mr. Moharana, learned ASC for the State
(Vigilance).
4. The F.I.R. was drawn by the informant, namely, DSP,
Vigilance Bargarh Unit, Bargarh, consequent upon which,
Sambalpur Vigilance P.S. Case No. 24 dated 26th March, 2010 was
registered under the alleged offences. As per the allegations in the
report, during and in course of enquiry conducted by the
informant, it was revealed that the petitioner, who was the
President of SDCCB, Bargarh from 26th January, 2008 to 25th
October, 2008 and as the Chairperson of the Appointment
Committee of the said Bank by Agenda No. 13(M) resolved for
appointment of contingent staff in the Bank which was opposed
by the Secretary due to the ban order of the Government on
appointment and promotion of the staff in CCBs vide letter No.
16312 dated 24th December, 2002. It was also revealed that for
such appointment, authorities like Registrar, Cooperative Society,
Orissa and NABARD had to be moved for guidelines, however,
the petitioner with an evil design and in order to avoid the
involvement of the then Secretary relieved the latter on 16th June,
2008 on the plea of poor performance and inducted the other
accused as the Secretary in spite of the fact that it was a Class-I
post and the appointment was blatantly in violation of Section
28(3-b)(1) of the OCS Act, 1962 as the appointed Secretary did
not have the requisite qualification for the said post at the
relevant time and it was an clearly a misuse of authority and
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
official position. It is also alleged that in spite of order of the
registrar, Cooperative Societies, Orissa dated 9th June, 2008 not
to go for any kind of appointment whatsoever in view of the ban
of the Government, the petitioner leading the Appointment
Committee with a criminal conspiracy hatched not only
appointed Secretary but also 39 Junior Assistants/Assistant
Supervisors, 5 Peons/Night Watchmen and 2 Computer Engineers
as contingent staff of the Bank with consolidated remuneration
and furthermore decided to appoint 28 candidates under the
rehabilitation scheme of the Bank and at the same time, reinstated
the supervisors, who had earlier been dismissed from service on
the findings of disciplinary proceedings against them. It is alleged
that all such appointments were carried out at the instance of the
petitioner being the head of the Appointment Committee and the
vacancies were filled up in the establishment without inviting
sponsorship of qualified candidates through Employment
Exchange which was again in violation of National Employment
Service Manual and the Orissa Reservation of vacancies in Posts
and Services (for SC& ST) Act, 1975 and Rules made thereunder.
Since all the above actions of the petitioner found to be overtly
malafide and ill-motivated and detrimental to the financial health
of the Bank, the report further alleges that the Registrar,
Cooperative Societies, Orissa, Director dated 23rd September,
2008 instructed the President of the Bank to cancel all the illegal
and irregular appointments and promotion forthwith, however,
the orders were never implemented, as a result of which, the
Management Committee was suspended and taken over by the
Collector and District Magistrate, Bargarh by order dated 25th
October, 2008, who, thereafter, terminated the services of 46
candidates appointed on contingent basis with immediate effect
and also sought for clarification of the Registrar, Cooperative
Societies, Orissa in respect of termination of 28 appointees under
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
the rehabilitation scheme awaiting approval of the same by the
Government. After the F.I.R. was lodged and Sambalpur Vigilance
P.S. Case was registered, the investigation was commenced and
finally concluded which resulted in the submission of chargesheet
against the petitioner. Thereafter, the petitioner before framing of
charge moved the application under Section 239 Cr.P.C. and as
mentioned before, it was rejected by the Special court vide
Annexure-2 which is currently under challenge.
5. Mr. Mohanty, learned Senior Advocate advanced an argument
that petitioner is not a public servant within the definition of the
Prevention of Corruption Act, 1988 all the more when he was
engaged for a brief period and is an advocate by profession. In
other words, according to Mr. Mohanty, the petitioner was
appointed in SDCCB not as a wholetime President and hence, not
a public servant and furthermore, the Bank is not a public
authority as it does not deal with the public in general but
confines its activities vis-à-vis its members. As to the engagement
of Secretary subsequently appointed, Mr. Mohanty referring to
the SDCCB vide letter No. 2329 dated 30th June, 2008 further
submits that the petitioner was directed to be engaged as in-
charge Secretary to discharge the duties of the Bank as a
temporary arrangement till the post was filled up on regular basis
and while claiming so, he cites a copy of the letter of the
Registrar, Cooperative Society, Orissa, Bhubaneswar as at
Annexure-3. So far as the action suspending the Management
Committee of the Bank, Mr. Mohanty would submit that after the
appointment of the Collector-cum- District Magistrate, Bargarh as
the Administrator to manage its affairs of SDCCB, such removal
and suspension was challenged on the ground of violation of the
rules of natural justice and non-application of mind which was
accepted and the order dated 9th June, 2009 of the learned
Commissioner-cum-RCS, Odisha was set aside by the Cooperative
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
Tribunal, Odisha, Bhubaneswar vide judgment dated 19th
October, 2009 (Anneuxre-4) and hence, when the suspension of
the Committee was invalidated, the allegations made against the
petitioner could not have been basis for any criminal action much
less a Vigilance proceeding before the learned court below and
the said aspect was not duly examined and appreciated by the
learned Special court, who instead proceeded to rejected the
application for discharge. It is also submitted by Mr. Mohanty,
learned Senior Advocate that a surcharge proceeding was initiated
against the other accused appointed latter on as the Secretary for
recovery of Rs. 12, 83,739/- from him on account of illegal
appointment and remuneration made in that regard initiated in
terms of Section 67 of the OCS Act, 1962 but Assistant Auditor
General of Cooperative Societies, Audit Circle, Bargarh set it aside
with a direction to refund if any such amount recovered as a
result and in that connection, a copy of the said order vide
Annexure-5 is placed reliance on. For the alleged illegal
appointments on contingent basis in the Bank, in response to the
allegation that it was in complete violation of Government ban
imposed, Mr. Mohanty contends that the clarification issued by
the Government in Cooperation Department to the effect that
promotion, recruitment can be effected on the basis of functional
needs was not taken into account and as such, there was no any
illegality committed by the petitioner in that regard which was
again approved and cleared by the Appointment Committee.
Lastly, it is submitted that the continuation of the Vigilance
proceeding, especially, when the allegations to be civil in nature
and when it stood neutralized by the orders of the Registrar,
Corporative Society, Orissa, Bhubaneswar and the Cooperative
Tribunal Orissa, would be an abuse of process of law and hence,
the impugned order dated 13th November, 2020 deserves to be
quashed.
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
6. On the other hand, Mr. Moharana, learned counsel for the
Vigilance Department submits that the petitioner had been a party
to the criminal conspiracy and in connivance with the Secretary
abused his authority and showed undue official favour and made
the illegal appointments in respect of the contingent employees
which was in violation the Government order and in view of such
appointments, the Bank and also the Government exchequer
sustained loss. As to the order of T.A. No. 60 of 2009 of the
Cooperative Tribunal, Mr. Moharana submits that the impugned
decision was interfered with on the ground that the principle of
natural justice had not been followed which has no bearing on
the merits of the Vigilance prosecution. With regard to the
surcharge proceeding in S.P. No. 18/2009 and order as at
Annexure-5, Mr. Moharana, learned ASC further submits on the
basis of the audit report such an action was initiated for
realization of the amount which was spent towards the
remuneration of the appointees engaged illegally and the
proceeding attended finality by order dated 16th October, 2020
which against does not absolve the petitioner from the illegalities
committed by him and in so far as the Secretary and his
exoneration is concerned, it was for the reason that he acted on
the orders of superior authority. According to Mr. Moharana,
irrespective of the orders under Anenxures-4 & 5, considering the
fact that the petitioner made illegal appointments and did such
other mischief which was revealed during and in course of
investigation leading to the submission of chargesheet,
whereupon, the learned Special court took cognizance of the
alleged offence and correctly declined to discharge him under
Section 239 Cr.P.C. Mr. Moharana further submits that at the
stage of framing of charge, a detailed analysis of evidence is to be
gone through and justifying the impugned order under Annexure-
2 cites the following judgments, such as, State of Orissa Vrs.
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
Dedebndranath Padhi (2005) 30 OCR(SC) 177: State of M.P. Vrs.
Birendra Kumar Tripathy (2009) 43 OCR(SC); State of Bihar Vrs.
Sri Rajendra Agarwalla J.T. 1996(1) 601; CBI Vrs. Dr. Anup Kumar
Srivastava (2017) 68 OCR (SC)409, Amit Kapoor Vrs. Ramesh
Chander and Another(2012) 9 SCC 460 and host of other
decisions by contending that jurisdiction under Section 482
Cr.P.C. should not be exercised especially at the initial stage while
charges are to be framed. In other words, Mr. Moharana would
contend that since a prima facie case is made out against the
petitioner, accordingly, he has been chargesheeted and the
learned Special court did not err while passing the impugned
order under Anneuxre-2 which, therefore, does not call for any
interference.
7. There is no denial to the fact that appointments were made by
the petitioner during the time when the petitioner was the
President of the SDCCB and engaged contingent staff and also re-
engaged the dismissed Supervisors, who had been removed after
a disciplinary action against them. The other irregularities and
illegalities have been revealed during the investigation by the
Vigilance Department which led to the lodging of the F.I.R.
Nevertheless, the action suspending the Managing Committee was
interfered with on the ground that due process was not followed
and there was violation of the principles of natural justice. In fact,
such a decision was based on the premise that rule of natural
justice was dispensed with. In the considered view of the Court,
any such order of the Cooperative Tribunal, Odisha,
Bhubaneswar vide Annexure-4 cannot entirely obliterate the
illegalities with regard to the appointments made during the
tenure of petitioner. The legality or otherwise of the alleged
appointments of contingent staff, or inclusion of dismissed
supervisors and all other actions as against the allegation that
there was a ban etc. and due procedure was not followed shall
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
have to be examined by the learned Special court. In other words,
any such order of removal and suspension of Managing
Committee in T.A. No. 60 of 2009 vide Annexure-4 is not
sufficient to avert criminal prosecution vis-à-vis petitioner. Again,
in so far as the proceeding in S.P. No. 18 of 2009 and the order
vide Anneuxre-5 is concerned, the Secretary from whom recovery
was sought for was exonerated as all such appointments had been
by the decision of the higher authority. The decisions on
suspension of the Managing Committee and removal of the
petitioner and surcharge proceeding cannot stand as a bar against
the prosecution before the Vigilance court. As to if any the
illegalities have been committed or not and in what manner, the
President to be responsible and whether he had any such malafide
or misconducted himself while carrying out or so to say forcing
the way for the appointments of the contingent staff and such
other orders and engagement of other officials of the Bank needs
a detailed deliberation and it can only be adjudicated upon by
the learned Special court and therefore, the Court is of the
humble view that merely by referring to the orders under
Annexures 4 & 5, the petitioner cannot be fully absolved.
8. In so far as the ground that the petitioner is not a public
servant and therefore, the prosecution is not tenable is concerned,
it has not been found favour with the learned court below which
placed reliance on a decision of the Apex Court in Government of
Andhra Pradesh & Others Vrs. P. Venku Reddy 2002 Supp.(SCR)
530 and considering the relevant documents of the SDCCB,
Bargarh concluded that the Bank in question is a Cooperative
Society controlled and aided by the Government and not merely
a society established under the Mutually Aided Cooperative
Societies Act and therefore, the petitioner is a public servant, he
having been the President from 6th January, 2008 to 25th
October, 2008. In the aforesaid decision, the Supreme Court has
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
held that an employee of the Cooperative Bank is a public servant
within the definition contained in Section 2 (c)(ix) of the
Prevention of Corruption Act, 1988. In other words, it has been
held therein that not only the President, Secretary and other
officer bearers of the Cooperative Bank fall within the definition
of the public servant but also its employees as in the said case, the
Supervisor was involved. In other words, in view of Section
2(c)(ix) of the Prevention of Corruption Act, besides the
employees of the Bank, the President, Secretary and other office
bearers of a registered co-operative society are included within
the meaning of 'public servant'. That being so, when the
petitioner was the office bearer of the SDCCB either even for a
temporary duration of 9 months not as a full time President, the
Court is of the view that the learned court below in view of the
ratio in P.Venky Reddy (supra) did not commit any serious error
taking a contrary view treating him as a public servant within the
definition of Prevention of Corruption Act. As to the nature of
appointment of the petitioner, irrespective of a temporary tenure
in the Cooperative Bank yet as its President, the Court is afraid if
he can demand immunity against Vigilance prosecution on any
such ground. However, having regard to the fact that the charge
is yet to be framed, the Court deems it proper to refrain itself
from taking a final view leaving it open for the Special court to
examine the same during trial. However, prima facie, considering
the fact that the petitioner was the President and he was involved
in alleged appointments and engagement of staff of the Bank, the
Court confirms the view that at the stage of framing of charge, a
detailed analysis of evidence should not be resorted to and hence,
inevitable conclusion would be that the learned court below has
not grossly erred for having declined to discharge him under
Section 439 Cr.P.C.
Raj Kishor Pradhan Vrs. State of Odisha (Vigilance)
9. Before parting with, the Court considers it to be just and
appropriate to outline the legal position while exercising inherent
jurisdiction which has been discussed in detail in Amit Kapoor
(supra), wherein, it has been held that while exercising jurisdiction
under Section 397 Cr.P.C. or Section 482 Cr.P.C., the Courts are
not to examine the facts and evidence and materials on record to
determine, whether, there is sufficient material on the basis of
which the case would end in conviction; as it would be concerned
primarily with the allegations and if they constitute an offence.
According to the aforesaid decision, it has been held that at the
stage of framing of charge, it is neither necessary nor a court is
called upon to hold a full-fledged enquiry to appreciate evidence
collected by the investigating agency to find out whether it is a
case of acquittal or conviction. The Supreme Court further held
that quashing of a charge is an exception and prosecution is the
rule and where the offence is broadly satisfied, the Court should
be inclined to permit the prosecution to continue rather than
quashing it at the initial stage. Without elaborating further and
being alive to the limitations while exercising power under
Section 482 Cr.P.C., the Court reaches at a logical conclusion that
the impugned order under Annexure-2 declining to discharge the
petitioner from the levelled charges by the learned court below is
not unjustified.
10. Accordingly, it is ordered.
11. In the result, the CRLMC stands dismissed.
(R.K. Pattanaik)
Signature Not Verified Judge
Digitally Signed kabita
Signed by: KABITARANI MAJHI
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 19-May-2023 16:15:41
