Orissa High Court
Pratap Chandra Barik vs D.G. & I.G. Of Police & .... Opposite ... on 2 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No.109 of 2011
An application under Section 19 of the State Administrative
Tribunal's Act, 1985.
..................
Pratap Chandra Barik .... Petitioner
-versus-
D.G. & I.G. of Police & .... Opposite Parties
Others
For Petitioner : M/s. N. Lenka, A. Parida, A.
Nayak & H.K. Mohanta.
For Opp. Parties : M/s. B. Panigrahi,
Addl. Standing Counsel.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:13.09.2023 and Date of Order:22.09.2023
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. Heard Mr. N. Lenka, learned counsel for the Petitioner
and Mr. B. Panigrahi, learned Addl. Standing Counsel for
the State-Opposite Parties.
3. The Petitioner has filed the present Writ Petition
challenging the order dtd.28.03.2008 so passed by
Opposite Party No.4 under Annexure-16 and confirmed by
// 2 //
the appellate authority-Opposite Party No.3 vide his order
dtd.22.04.2010 under Annexure-18.
4. It is the case of the Petitioner is that the Petitioner
while continuing in the establishment of Opposite Party
No.5 as an A.S.I of Police, a proceeding was initiated
against him vide Annexure-3 with the following charge:-
"C H A R G E
A.S.I. Pratap Chandra Barik of Mayurbhanj District is
charged with gross misconduct, moral turpitude and
dereliction of duty in that.
While he was functioning as in-charge of Chadheibhal O.P.
under Karanjia P.S., he developed friendship with the Chhatu
@ Jakir Hussain, S/o.. Ahamad Hussain of Chadheibhal
and allegedly engaged him for illegal collection of money from
plying trucks loaded with cattle's. On 30.03.2000 early
morning he engaged the said Chhatu @ Jakir Hussain of
Chadheibhal and Susil Karua of Chadheibhal to chase one
Truck loaded with cattle's in a Motor Cycle for collection of
illegal money as a result of which Chhatu @ Jakir Husain met
with an accident and Chhatu @ Jakir Hussain died at the
spot and the G.R. Susil Karua sustained injuries which refers
to Karanjia P.S. Case No.63 dt.30.05.2000
U/s.270/337/338/304(A) I.P.C.
He is therefore directed show cause by 15.09.2000 as to
why he shall not be suitable dealt within the event of the
charge being held to provided against him.
That any representation he may with to either in writing or
orally will be duly considered by the competent authority to
pass final order before passing such order".
4.1. In the proceeding, the Petitioner not only filed his
written statement of defence, but also participated in the
enquiry. The Enquiry Officer without proper appreciation
of the materials held the Petitioner guilty of the charges
vide his report submitted under Annexure-4. On receipt of
the enquiry report, Opposite Party No.4 issued the 1st show
// 3 //
cause under Annexure-5 and the Petitioner though gave a
detailed reply under Annexure-7 but without considering
the same in its proper perspective, when the Petitioner was
imposed with the punishment in Mayurbhanj District
Proceeding No.30/2000 vide order dtd.28.03.2008 under
Annexure-16, he preferred an appeal against the said order.
4.2. The appellate authority-Opposite Party No.2 vide his
order under Annexure-18 when confirmed the order of
punishment so passed against the Petitioner, Petitioner
challenging the same filed a revision before Opposite Party
No.1. But Opposite Party No.1 vide his order under
Annexure-9 while setting aside the punishment so imposed,
remitted the matter with a direction to cause fresh enquiry.
The revisional authority also held that the period of
suspension be decided after disposal of the proceeding.
4.3. It is contended that pursuant to the order passed by
the revisional authority under Annexure-9, fresh charges
were framed against the Petitioner vide Annexure-10 and
the Petitioner on receipt of the same submitted his reply
under Annexure-11. It is contended that without proper
appreciation of the stand taken by the Petitioner in his
reply to the charges under Annexure-11 and the stand
taken in the written statement of defence under
Annexure-12, Opposite Party No.4 proceeded with the
// 4 //
matter with appointment of Enquiry Officer to conduct the
enquiry. Basing on the enquiry report Opposite Party No.4
issued the 1st and 2nd show cause. The Petitioner on
receipt of the 2nd show cause issued under Annexure-14,
submitted his reply under Annexure-15. But Opposite
Party No.4 once again without proper appreciation of the
stand taken by the Petitioner imposed the punishment vide
the impugned order dtd.28.03.2008 under Annexuire-16.
Opposite Party No.4 while disposing the proceeding
awarded punishment of forfeiture of increment for a period
of one year with cumulative effect carrying value of two
black marks and treated the period of suspension as such.
4.4. It is contended that challenging the order of
punishment so passed by Opposite Party No.4 under
Annexure-16, Petitioner filed an appeal before Opposite
Party No.2 under Annexure-17. But the appellate authority
without proper appreciation of the grounds of appeal
rejected the same vide order dtd.22.04.2010 under
Annexure-18.
4.5. It is contended that the proceeding in question was
initiated against the Petitioner under the provisions
contained in the Police Manual. Under PMR-824, no such
punishment to treat the period of suspension as such is
prescribed. But Opposite Party No.4 while disposing the
// 5 //
proceeding with passing of the order under Annexure-16
awarded punishment of forfeiture of increment for a period
of one year with cumulative effect carrying value of two
black marks. Along with the said punishment Opposite
Party No.4 directed to treat the period of suspension from
06.06.2000 to 02.09.2000 as such.
4.6. It is contended that since no such punishment to
treat the period of suspension as such is prescribed under
PMR-824, the said punishment is not sustainable in the eye
of law.
In support of the aforesaid submissions, learned
counsel for the Petitioner relied on an order passed by this
Court on 11.09.2023 in WPC(OAC) No.4466/2015. This
Court in Para-4.1, 4.2, 4.3, 6 & 6.1 of the order has held as
follows:-
"4.1. It is also contended that while awarding one black
mark, the direction to treat the period of suspension as such
is not permissible as no such punishment is prescribed
under PMR-824.
4.2. In support of the aforesaid submission, Mr.
Mohanty relied on the decision of this Court passed on
28.08.2023 in WPC(OAC) No.1723 of 2018. This Court in
Para-6 and 6.1. of the said order has held as follows:-
4.3. Mr. Mohanty also relied on another decision of the
Hon'ble Apex Court in the case of Vijay Singh vs. State of
U.P. & Others in Civil Appeal No.3550 of 2012( Arising out
of SLP (C) No.27600 of 2011) decided on 13.04.2012. The
view of the Hon'ble Apex Court in Para-15 & 16 of the said
judgment are quoted hereunder:-
// 6 //
"15. Unfortunately, a too trivial matter had been dragged unproportionately
which has caused so much problems to the appellant. There is nothing on record
to show as to whether the alleged delinquency would fall within the ambit of
misconduct for which disciplinary proceedings could be initiated. It is settled
legal proposition that the vagaries of the employer to say ex post facto that some
acts of omission or commission nowhere found to be enumerated in the relevant
rules is nonetheless a misconduct (See: M/s. Glaxo Laboratories (I) Ltd. v.
Presiding Officer, Labour Court, Meerut & Ors., AIR 1984 SC 505; and A.L.
Kalra v. The Project and Equipment Corporation of India Ltd., AIR 1984 SC
1361).
16. Undoubtedly, in a civilized society governed by rule of law, the punishment
not prescribed under the statutory rules cannot be imposed. Principle enshrined
in Criminal Jurisprudence to this effect is prescribed in legal maxim nulla poena
sine lege which means that a person should not be made to suffer penalty
except for a clear breach of existing law. In S. Khushboo v. Kanniammal & Anr.,
AIR 2010 SC 3196, this Court has held that a person cannot be tried for an
alleged offence unless the Legislature has made it punishable by law and it
falls within the offence as defined under Sections 40, 41 and 42 of the Indian
Penal Code, 1860, Section 2(n) of Code of Criminal Procedure 1973, or Section
3(38) of the General Clauses Act, 1897. The same analogy can be drawn in the
instant case though the matter is not criminal in nature.
Thus, in view of the above, the punishment order is not
maintainable in the eyes of law".
6. Having heard learned counsel for the Parties and after
going through the materials available on record and placing
reliance on the decisions as cited (supra), this Court is of the
view that while awarding the punishment of one black mark
no direction could have been issued to treat the period of
suspension as such, as no such punishment is prescribed
under PMR-824.
6.1. Therefore, the punishment so far as it relates to
treating the period of suspension as such is not sustainable
in the eye of law. Accordingly, this Court is inclined to
quash the punishment so far as it relates to treating the
period of suspension as such so passed by disciplinary
authority-Opposite Party No.4-under Annexure-7 and
confirmed by the appellate and revisional authority -
Opposite Party Nos.3 & 2 vide Annexures-11 and 13.
This Court accordingly directs to treat the period of
suspension as leave due and admissible and for passing of
an order to that effect by Opposite Party No.4 within a
period of 2 (two) months from the date of receipt of the
order. This Court is not inclined to interfere with the other
punishment i.e. award of one black mark".
5. Mr. Panigrahi, learned Addl. Standing Counsel on the
other hand contended that the Petitioner in the proceeding
in question when was initially imposed with the
punishment, the matter was carried in appeal and
// 7 //
thereafter in revision. The revisional authority while setting
aside the order of punishment so passed against the
Petitioner remanded the matter to Opposite Party No.4 with
a direction to cause fresh enquiry. On receipt of the order
so passed by the revisional authority fresh enquiry was
conducted and basing on the enquiry report so submitted,
Petitioner was issued with the 1st and 2nd show cause.
Opposite Party No.4 after due appreciation of the stand
taken in the reply to the 2nd show cause, passed the order
of punishment under Annexure-16. The Petitioner though
preferred an appeal against the order of punishment before
Opposite Party No.2, but the appellate authority confirmed
the order of punishment while rejecting the appeal vide
order dtd.22.04.2010 under Annexure-18.
5.1. It is accordingly contended that since after due
perusal of the materials available in the proceeding file
disciplinary authority -Opposite Party No.4, imposed the
punishment vide order dtd.28.03.2008, which has been
confirmed by Opposite Party No.2 vide order
dtd.22.04.2010 under Annexure-18-Series, it needs no
interference of this Court.
However, it is fairly contended that under PMR-824,
no such punishment is prescribed to treat the period of
suspension as such.
// 8 //
6. Having heard learned counsel for the Parties and after
going through the materials available on record, it is found
that the proceeding in question against the Petitioner was
initiated under the provisions of Police Manual. It is also
found that no such punishment to treat the period of
suspension as such is prescribed under PMR-824.
Therefore, placing reliance on the decision so cited by
the learned counsel for the Petitioner, this Court is inclined
to quash the order, so far as it relates to treating the period
of suspension as such. While interfering with the same,
this Court is inclined to quash that part of the order
wherein the period of suspension from 06.06.2000 to
07.09.2000 has been treated as such. While quashing the
same, this Court directs Opposite Party No.4 to treat the
period from 06.06.2000 to 07.09.2000 as leave due and
admissible and pass a fresh appropriate order within a
period of two (2) 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)
Signed by: SUBRAT KUMAR BARIK Orissa High Court, Cuttack
Reason: Authentication Dated the 22nd of September, 2023/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 15:50:29
