Orissa High Court

Vyjainto Kumar Ray vs State Of Odisha And Others on 11 March, 2025

Author: Arindam Sinha

Bench: Arindam Sinha, M.S. Sahoo

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                              W.A. No.431 of 2025
                                      And
                              I.A. no.1073 of 2025
Vyjainto Kumar Ray                                     ....                 Appellant

                                      -Versus-

State of Odisha and others                             ....             Respondents


Advocates appeared in this case:

For Appellant                 : Mr. Budhadev Routray, Senior Advocate
                                Mr. Shakti Prasad Panda, Advocate

For Respondents               : Mr. Bimbisar Dash,
                                Additional Government Advocate

CORAM:

         THE HON'BLE MR. JUSTICE ARINDAM SINHA,
                 ACTING CHIEF JUSTICE
                          AND
           THE HON'BLE MR. JUSTICE M.S. SAHOO

                                JUDGMENT

--------------------------------------------------------------------------------------

Date of hearing and judgment: 11th March, 2025

-------------------------------------------------------------------------------------- ARINDAM SINHA, ACJ.

1. Applicant, who wants to prefer appeal, seeks condonation of

reported delay of 23 days. Mr. Dash, learned advocate, Additional

W.A. no.431 of 2025 Government Advocate appears on behalf of State and in fairness does

not oppose the application.

2. We have perused the application for condonation of delay

carrying cause, which we accept.

3. The delay is condoned and the appeal, admitted. The application

is disposed of.

4. The appeal has been preferred against order dated 2nd December,

2024 made by the learned single Judge. By said order appellant's writ

petition carrying challenge to order of punishment dated 12th January,

2023 was disposed of. Direction was for setting aside and quashing the

order of punishment. Appellant is aggrieved by consequential direction

of remitting the matter to respondent no.1, to start proceeding from

stage of inquiry and to conclude same in accordance with law with

further direction for expedition.

5. Text of said punishment order dated 12th January, 2023 is

reproduced below.

"xxx xxx Whereas a Disciplinary Proceeding was drawn up against Sri Vyjainto Kumar Ray, Ex-Vice Principal, BOSE, Cuttack now Sr. Lecturer in Mechanical Engineering, Govt. Polytechnic, Nabarangpur vide this

W.A. no.431 of 2025 Department Memorandum No.6846 dated 04.12.2014 for the lapses specified in the Article of Charges vide Annexure-I of the said Memorandum.

Whereas, after careful consideration of the records of the Proceeding, the Inquiry Report submitted by the Inquiring Officer, show-cause replies submitted by Sri Ray vide representation dated 04.09.2020 against the findings of the Inquiring Officer and representation dated

06.01.2022 against the proposed punishment, and the recommendation of the OPSC, Cuttack vide Letter No.5818 dated 28.06.2022, Government have been pleased to impose the following major penalties on Sri Vyjainto Kumar Ray, Ex-Vice Principal, BOSE, Cuttack now Sr. Lecturer in Mechanical Engineering, Govt. Polytechnic, Nabarangpur.

1. He is censured.

2. Two increments shall be stopped with cumulative effect.

3. The period of suspension is treated as such."

(emphasis supplied)

6. Mr. Routray, learned senior advocate appears on behalf of

appellant and draws attention to the charge, reproduced below.

"Whereas, it appears that Sri Vyjainto Kumar Ray, Vice Principal, BOSE, Cuttack [under suspension] was

W.A. no.431 of 2025 assigned the duty of flying squad by the Vice Chairman, SCTE&VT, Odisha, Bhubaneswar for observing 2014 summer semester examination (1st & 2nd sitting) at Krupajal Engineering School, Bhubaneswar on 26.04.2014. During the conduct of 1st sitting of examination, he detected 38 nos. malpractice cases but he did not handover the list of the malpractice cases to the Centre Superintendent and the examination papers were not packed till 5.30 P.M although the 1st sitting of examination was over at 11.00 A.M which clearly indicates his malafide intension and violation of examination rules."

7. On query made Mr. Routray refers us to his client's reply dated

17th June, 2015, filed in the inquiry. He submits, paragraph-6 in it are

statements of facts. Part of said paragraph is reproduced below.

"6. That, just after the examination, when I asked the Center Superintendent to receive the seized materials of malpractice cases and furnish me the receipt of acknowledgement, he along with some of his associates pressurized me not to report such cases. My repeated effort to hand over the seized materials in return of a receipt of acknowledgement was not heeded by the Center Superintendent rather he engaged in dilatory tactics coupled with pressure through allurement. When the effort of allurement failed, threatening was given to me involving my life risk. In such circumstance of involving life risk as

W.A. no.431 of 2025 well as the unholy intention of the Center Superintendent, I intimated the matter over phone to the Vice Chairman, SCTE&VT, who deputed the Deputy Secretary, SCTE&VT, to the institution. The seized materials were handed over to the Center Superintendent in the presence of the Deputy Secretary, SCTE&VT, Odisha, after his arrival in the center to prevent the chance of destruction of the seized malpractice materials by the Center Superintendent, who had avoided repeatedly to receive the same and to furnish the receipt of acknowledgement to me in spite of my several request. The Center Superintendent even did not bother to furnish the receipt though the materials were handed over to him in the presence of the Deputy Secretary who also did not ask the Center Superintendent to furnish the same.

       xxx                            xxx                        xxx"

                                                       (emphasis supplied)

8. On further query Mr. Routray takes us to the inquiry report,

which appears to be dated 30th June, 2017. On perusal of it we

reproduce below two points and the conclusion as extracted therefrom.

"FINDINGS:

xxx xxx xxx  Sri Amit Kumar the then Principal is now not working as Principal. He has left the Institution & presently Mr. P.R. Bairisal is working since 10.4.2017. Sri Bairisal

W.A. no.431 of 2025 expressed his inability to produce the records on the ground that he was not Principal at the time of occurrence of event & cannot trace the records. Further, he stated that the persons who were working then are not present in the institution.

xxx xxx xxx

 It is a fact that when Sri S.K. Mishra, Ex-Dy. Secretary, SCTE&VT arrived in KES around to 10 to 15 students were outside the Gate & Sri Ray was not Gheraoed by any one.

         xxx                     xxx                 xxx

      CONCLUSION:

Considering the written statement of persons attended the enquiry and the written brief of defence submitted by Sri V.K. Ray now working as Sr. Lect. Mech. Govt. Polytechnic, Nabarangpur, I am of the opinion that;

There was some dialogue between Sri Amit Kumar, the then Principal, KES and Sri V.K. Ray Sr. Lect. as regards booking of malpractice cases/ dropping of malpractice cases. It is also stated that Sri Amit Kumar, the then Principal KES reported that Sri Ray demanded 70,000 for dropping of malpractice cases

and Sri Ray also complained that Sri Amit Kumar offered cash for dropping of malpractice cases.

W.A. no.431 of 2025 Such allegation of Sri Kumar against Sri Ray and counter allegation of Sri Ray against Sri Kumar could not be substantiated during enquiry since Sri Amit Kumar, the then Principal, KES, the prime complainant could not be examined due to non-appearance.

In view of the above it is suggested that the matter may be forwarded to prescribed Agency of State Govt. for detailed investigation."

(emphasis supplied)

9. Mr. Routray submits, the charge against his client was, delay in

submitting the records in respect of the instances of malpractice

detected by his client. The delay was explained as aforesaid. The

Inquiring Officer (IO) could not secure presence of the prime

complainant nor anyone to depose against his client. In the

circumstances, his client should have been exonerated or discharged.

The learned single Judge correctly appreciated the facts to quash the

punishment order but ought not to have remitted the inquiry. There is

no material to suggest that on the inquiry remitted, there is likelihood of

the prime complainant or some person, who will surface to depose

against his client.

10. Mr. Dash relies on first of above reproduced points from the

inquiry report, where the IO said that the person, who was then

W.A. no.431 of 2025 principal is not working as principal. He has left the institution. Person

in charge expressed his inability to produce records on ground he was

not principal at the time of occurrence and he cannot trace it.

Furthermore, said person in charge stated that persons who were

working then are not present in the institution. This is good ground for

the learned single Judge to have remitted the matter for fresh inquiry.

No interference is warranted in appeal against the consequential

direction.

11. Appellant in his explanation regarding the delay has said he was

prevented from submitting the documents of malpractice detected. Here

we appreciate it is appellant, who detected the malpractice in the

examination. The detection was made aware to the authorities on

belated handing in of the documents. So, the only charge is on account

of delay. In explaining it appellant further said he was prevented had

requested Vice-Chairman, SCTE&VT, who deputed the Deputy

Secretary, SCTE&VT to the institution. The seized materials were

handed over to the Center Superintendent in presence of the Deputy

Secretary, after his arrival, to prevent chance of destruction of seized

malpractice materials by the Center Superintendent.

W.A. no.431 of 2025

12. On query we have ascertained, neither the Deputy Secretary,

SCTE&VT, Odisha nor the Center Superintendent were examined in

the inquiry. The principal who had left the institution had been called to

depose. He conveniently did not surface. To think there will be

documentary evidence in respect of the allegations mentioned in the

report is, to say the least, absurd. Materials on record do not indicate

existence of CCTV footage.

13. Purpose of our reproducing text of the punishment order was our

obtaining satisfaction that suggestion made by the IO for holding

detailed investigation was not acted upon. We think, it could not be.

Instead second show-cause notice was issued and reply thereto said to

have been considered, for imposing the punishment.

14. Reference to conclusion in the inquiry report reproduced above

will reveal statements regarding allegation that appellant had demanded

Rs.70,000/- for dropping of malpractice cases and he had also

complained, Sri Amit Kumar, the principal had offered cash for

dropping of the malpractice cases. It is clear from relevant part of the

conclusion that the allegation was made by a person against appellant.

The report itself says, said Sri Amit Kumar was prime complainant.

There was no mention of this in the charge but in the inquiry, appellant

W.A. no.431 of 2025 stated. The statement could not be contradicted because the prime

complainant chose to not appear in the inquiry. In this connection, we

reproduce below paragraph-8 from appellant's aforesaid explanation.

"8. That the Deputy Secretary left the center with the seized materials along with the answer books of malpractice cases without ensuring the completion of packing of answer books just to escape from the unruly situation leaving me alone there to face the wrath of the Center Superintendent, staff, students and the outsiders. Since the Deputy Secretary mentioned in his report that on receipt of information regarding non-packing of answer sheets of first sitting he came to the center, he could have stayed there to complete the packing of answer sheets which was delayed due to unholy attitude of the Center Superintendent and his associates."

15. The punishment order was passed in a void. There was no finding

of guilt on a basis available in the record of inquiry. Recommendation

of the IO for detailed investigation was not acted upon. Conduct of the

disciplinary authority thus militates against any direction for remitting

the matter for fresh inquiry.

16. Consequential direction in impugned order for remitting the

matter for fresh inquiry is set aside in appeal. Quashing of the

punishment order is confirmed. There will be no break in appellant's

W.A. no.431 of 2025 service. He will be entitled to arrears and any other benefit, if any in

respect of the suspension period. Impugned order is modified to that

extent.

17. The appeal is allowed and disposed of.