Orissa High Court

Deepaka Das vs State Of Odisha And Others .... Opposite ... on 8 May, 2024

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

               IN THE HIGH COURT OF ORISSA AT CUTTACK


                          W.P.(C). No. 18457 of 2014

      (An application under Article 226 & 227 of the Constitution of
      India)
                                     ---------------

      Deepaka Das             ......                     Petitioner

                              -Versus-

      State of Odisha and others       ....        Opposite Parties

      Advocate(s) appeared in this case:-
      _______________________________________________________

        For Petitioner   :           Ms. A.Ray, Advocate.
        For Opp. Parties :
                                     Mr. S.N.Pattnaik,
                                     Additional Government Advocate

      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                                   JUDGMENT

8th May, 2024 SASHIKANTA MISHRA, J.

. The petitioner has approached this Court

with the following prayer;

" In view of the aforementioned facts and circumstances it is therefore prayed that your Lordships may graciously be pleased to admit this writ application, issue notice to the Opp.Parties to show cause as to why the order under Annexure- 5 shall not be quashed and why the petitioner shall not be re-engaged as Gana Sikshyak as

before acquittal from criminal charges of the Opp. Parties fails to file show cause or files in sufficient cause, then rule NISI will made absolute against them.

And Your Lordships further be pleased to pass any other order/orders, direction/directions which deemed just and proper to do justice to the petitioner.;

And for this act of kindness the petitioner shall as in duty bound ever pray.

2. The facts of the case, briefly stated, are that the

petitioner was engaged as Gana Sikhayak, as per engagement

order dated 14.07.2008, and was allotted to Kochilabelari

Project Primary School in the district of Kendrapara. While

working as such, he was involved in a criminal case being

Mahakalpada P.S. Case No. 186 dated 16.08.2013

corresponding to G.R. Case No. 1018/2013 of the Court of

learned Sessions Judge-cum-Special Judge, Kendrapara

under Section 341/354-A of IPC and Section 10 of the

POCSO Act. He was taken to custody and subsequently

released on bail. By order dated 18.09.2013, the Collector-

cum-Chairman, SSA directed his disengagement on the

ground of his detention in jail custody beyond 48 hours.

Subsequently, as per judgment passed on 30.04.2014 in the

aforementioned criminal case, learned Sessions Judge held

that the prosecution has failed to bring home the charge

against the petitioner and therefore, acquitted him. After

passing of the judgment, the petitioner submitted

representation dated 19.05.2014 and 18.08.2014, bringing

the fact of his acquittal in the criminal case to the notice of

the authorities. The representation was addressed to the

Block Education Officer. By order dated 21.08.2014, the

Collector rejected the representation of the petitioner inter

alia holding as follows;

"6. However, the entire episode, starting from allegation of unfortunate and heinous crime committed by the accused to the compromise made clearly indicate the fact of moral turpitude on the part of Sri. Das, ex-Gana Sikhyak by targeting a minor girl, who is his student a victim. This is not expected from a person holding a noble job of teachership. In my considered opinion, re-engaging him as a teacher will give a wrong message to the society even though he has been exonerated due to failure of prosecution to prove the case. Accordingly, his request to re-engage him as Gana-Sikhyak is rejected. Intimate forthwith."

3. Counter Affidavit has been filed by the State Opposite

Parties justifying the action taken against the petitioner. It

has been stated that the petitioner was disengaged because

of his detention in jail custody beyond 48 hours. Thereafter,

he faced trial and was acquitted. However, Clause-4 of the

engagement order of the petitioner as Gana Sikhayak clearly

mentions that the Gana Sikhayak can be removed from the

engagement within 30 days, if he/she violates the conditions

stipulated in the engagement contract. Mr. Pattnaik further

submits that mere acquittal in the criminal case does not

grant any automatic right on the petitioner to be reinstated

as Gana Sikhayak. Moreover, he has not been honourably

exonerated and only because of compromise by the victim's

family, he was acquitted.

4. Heard Ms. Agnisikha Ray, learned counsel for the

petitioner and Mr. S.N.Pattnaik, learned Additional

Government Advocate for the State.

5. Ms. Ray submits that once the petitioner is acquitted from

the criminal charge, it cannot be said that the allegations

levelled against him, for which he was removed from service,

has any basis. Moreover, the Competent Court, being the

Court of Sessions, having passed a judgment of acquittal, it

is not open to the Collector to sit in appeal and make his own

interpretation of such judgment.

6. Mr. S.N.Pattnaik, learned Additional Government Advocate

would submit that law is well settled that mere acquittal in a

criminal case on the same set of charges does not lead to

automatic exoneration from the charges in the departmental

proceeding. In the instant case, the petitioner, being a

contractual employee, was disengaged because of his

involvement in a criminal case and that too, involving

offences of moral turpitude. Reading of the judgment of the

acquittal, would make it clear that because of non-

cooperation by the victim and her family, the charges could

not be established.

7. The facts of the case are not disputed. This Court finds

that there is no condition in the engagement order granting

power on the authority to remove a Gana Sikhayak only

because of his involvement in a criminal case. The petitioner

was disengaged on the ground of his detention in jail custody

beyond 48 hours. Evidently, the Collector was influenced by

the corresponding provision in the Odisha Service Code

available for Government Servants, i.e. Rule-12 of OCS (CCA)

Rules, which needless to mention, does not apply to Gana

Sikhayaks. Be that as it may, this Court also finds that no

opportunity of hearing whatsoever was granted to the

petitioner before taking the extreme step of disengagement of

the service. The learned Sessions Judge in his judgment held

that the prosecution miserably failed to bring home the

charge against the petitioner for which he acquitted him

therefrom. In Paragraph 7 of the judgment, learned Sessions

Judge has mentioned that "the informant has deposed during

cross-examination that the matter has been compromised

out of Court and he did not want to proceed further in the

case". Obviously, this is not the finding of the learned

Sessions Judge but reference to the statement made by the

informant during cross-examination. The Collector, while

referring to the above statement reproduced in the judgment,

went on to hold as follows:

"Perusal of the orders of learned District & sessions Judge clearly reveals that the accused being aware of the serious consequences of the case has entered into a compromise with the father of the victim for which the father of the victim has become hostile."

This is nothing but sitting in appeal over the judgment

passed by the competent Criminal Court. It would be relevant

to state here that the State never challenged the judgment of

acquittal before the higher forum and therefore, it has

become final. Such being the fact situation, it is not open to

any authority, much less the Collector, to interpret the

judgment in a manner that contradicts the ultimate finding

of the said judgment, that is acquittal. The further finding

under Paragraph 6, already quoted hereinbefore, also runs

entirely contrary to the findings of the learned Sessions

Judge which, in the circumstances, is not permissible in the

eye of law.