Orissa High Court
Umakanta Biswal vs State Of Odisha& Another .... Opposite ... on 13 October, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No.28721 of 2023
Umakanta Biswal .... Petitioner
Mr. B.Routray, Senior Advocate
-Versus-
State of Odisha& another .... Opposite Parties
Mr. B.Dash, AGA
And
W.P.(C) No. 8440 of 2022
Umakanta Biswal .... Petitioner
Ms. Saswati Mohapatra, Advocate
-Versus-
State of Odisha & another .... Opposite Parties
Mr. B.Dash,AGA
CORAM:
MR. JUSTICE R.K. PATTANAIK
DATE OF HEARING:17.07.2025
DATE OF JUDGMENT:13.10.2025
1.
Both the writ petitions are clubbed together for disposal by the
following judgment since a common question of law is involved.
2. W.P. (C) No. 8440 of 2022:Instant writ petition is filed by the
petitioner assailing the impugned show cause notice dated 21st
March, 2022 as at Annexure-5 on the grounds stated.
2.1. Opposite party No.2 issued the show cause notice to the
petitioner against the findings of the Enquiry Officer to which the
petitioner submitted a reply. It is pleaded that opposite party No.2
without judicial application of mind to the show cause reply
issued Annexure-5 proposing a punishment of his dismissal from
service and therefore, the same is unjustified and legally not
tenable.
3. W.P. (C) No.28721 of 2023: The present writ petition is filed by
the petitioner for quashment of the impugned disciplinary
proceeding initiated against him and further directing the opposite
parties to promote him to the post of Deputy Superintendent of
Police and Additional Superintendent of Police from the date his
juniors were promoted granting all consequential service benefits
upon such promotion within a stipulated period.
4. At the relevant point of time, when the departmental proceeding
was initiated, the petitioner was posted as Inspector in-charge,
Sadar P.S., Berhampur. It is pleaded that the petitioner was
initially appointed as a Sub-Inspector Police and was promoted to
the post of Inspector of Police and never before any disciplinary
proceeding was initiated against him, however, while posted as the
Inspector of Police, Berhampur, Vigilance P.S. Case No. 55 of
2010 was registered against him on 11th December, 2010 under
Section 13(1) (d) & 13(2) read with Section 7 of the Prevention of
Corruption Act corresponding to T.R. Case No. 11 of 2012 then
pending in the court of learned Special Judge(Vigilance), Cuttack.
The F.I.R. dated 11th December, 2010 is at Annexure-1.It is
further pleaded that the Superintendent Police, Berhampur
initiated the departmental proceeding against the petitioner in the
year 2012 on the self-same allegations and charge. A memo of
charge was served on the petitioner as per Annexure-3.It is
claimed that such proceeding was initiated pursuant to the
Vigilance case, wherein, he was acquitted and therefore, the
departmental action is liable to be quashed.
5. Initially, the petitioner made a representation to the authority
concerned to discontinue the disciplinary proceeding on the
ground stated therein but such request was turned down, hence,
with no alternative, he approached the Odisha Administrative
Tribunal in O.A. No. 1482 (C) of 2014. According to the
petitioner, the learned Tribunal by order dated 13th May, 2015 at
Annexure-4 directed the opposite parties to continue with the
disciplinary proceeding but not to pass any final order till disposal
of the Vigilance case. It is alleged that in spite of such an order in
O.A. No. 1482(C) of 2014, the disciplinary proceeding was
continued with the examination of witnesses. Such proceeding is
further alleged to be in absence of the petitioner. It is also pleaded
that the petitioner's case for promotion was ignored and therefore,
W.P. (C) No.3121 of 2021 was filed and it was followed by an
order dated 7th October, 2021 as at Annexure-5 with a direction to
promote him to the rank of Deputy Superintendent of Police from
the date his junior and batch mates received such promotion. The
said order in W.P. (C) No. 3121 of 2021 was challenged by the
State Government in W.A. No. 1346 of 2022 and as a result, the
order of the Single Bench was set aside.
6. As per the petitioner, the Vigilance case resulted in an order of
acquittal and since the disciplinary proceeding is in respect of the
self-same charge, no reason lies to allow such proceeding to
continue, hence, to be dropped. At the same time, it is alleged by
the petitioner that he was set ex parte and was not even allowed to
cross-examine the witnesses and it was brought to the notice of the
Enquiry Officer and also the Disciplinary Authority but was of no
avail, hence, he had to file W.P(C) No. 31759 of 2021 and the
same is pending disposal.
7. Opposite party No.2 issued first show cause notice against the
findings of the Enquiry Officer and as earlier stated, reply in
response to the show cause was filed but it has led to the issuance
of 2ndshow cause notice at Annexure-6 proposing a punishment of
dismissal from service, later to which, W.P.(C) No. 8440 of 2022
was filed and therein, the order dated 7th April, 2022 i.e.
Annexure-7 was passed to the effect that there shall be no coercive
action taken against him till the next date of hearing.
8. The petitioner refers to a copy of the judgment as at Annexure-8
in T.R. Case No. 11 of 2012 and claims that he has been
honourably acquitted of all the charges and therefore, the
departmental proceeding is needed to be quashed. It has been
alleged that juniors to the petitioner was promoted to the posts of
Deputy Superintendent of Police in the year 2021 and once again
in 2023 and has been inducted in the Grade of OPS (Sr.Branch) to
the rank of Additional Superintendent of Police but in view of the
departmental proceeding initiated on account of the Vigilance
case, he has been sidelined.
9. Heard learned counsel for the respective parties.
10. Perused the counter affidavit of opposite party Nos. 1 and 2.
It is pleaded therein that the departmental proceeding is to
continue along with the criminal case in view of the G.A.
Department's Letter No. 19993/GEN. dated 10th October, 2009.
According to the pleading on record, Berhampur Vigilance P.S.
Case No. 55 dated 11th December, 2010 was registered under the
Prevention of Corruption Act, 1988 since the petitioner allegedly
demanded and accepted bribe of Rs.30,000/- from the
complainant, later to which, Departmental Proceeding No. 5 of
2012 was drawn up for the alleged misconduct, while discharging
official duty as a Government servant and for having failed to
maintain absolute integrity. The order of Single Bench of this
Court in W.P.(C) No. 31218 of 2021, according to the State, was
set aside vide Annexure-B/2 and in so far as the departmental
action is concerned, evidence was received and ultimately, the
Enquiry Officer returned the findings holding the petitioner guilty
of the charges and such a proceeding, as further pleaded, is
completely different than the criminal case and that apart, the
standard of proof required in both the proceedings are not same,
inasmuch as, a person even after acquitted in a criminal case may
be found guilty by the Department. It is stated that the
departmental proceeding was allowed to continue by the learned
Odisha Administrative Tribunal in O.A. No. 1482(C) of 2014
followed by an interim order in W.P.(C) No. 8440 of 2022 and as
far as promotion is concerned, DPC and review DPC were held to
fill up the vacancies in the rank of Deputy Superintendent of
Police held in the year 2020 & 2021 and on the recommendations
received, the eligible Inspectors of Police were promoted to such
rank vide Home Department's Notification dated 29 th January,
2021 but the petitioner was not promoted due to pendency of
Berhampur Vigilance P.S. Case No. 55 of 2010 for trial but the
findings of the DPC were kept in a sealed cover in view of the
Memorandum dated 18th February, 1994 of the G.A. Dept.,
Government of Odisha as at Annexure-C/2. The State's response
is that a Division Bench of this Court in W.A. No. 805 of 2021
and batch of cases by order dated 11th May, 2023 held and
concluded that there is no right of a Government Servant to be
considered for promotion during the pendency of departmental
proceedings or criminal prosecution or both and therefore, the
case of the petitioner has not been taken in to account, while
considering the promotion of others.
11. Mr. Routray, learned Senior Advocate for the petitioner
submits that the petitioner having been acquitted in the Vigilance
case, the departmental proceeding initiated and pending against
him should be quashed and in support of such contention, he relies
on the following decisions, such as, Ram Lal Vrs. State of
Rajasthan & others AIR 2024 SC 637; Babaji Sahoo &
another Vrs. State of Odisha &others 2010 (II) OLR
458;Sailendra Nath Mohanty Vrs. Union of India & others
2014(I) ILR-CUT 1070 and G.M. Tank Vrs. State of Gujarat
& others (2006) 5 SCC 446. The submission of Mr. Routray
learned Senior Advocate is that when there has been an
honourable acquittal of the petitioner after full consideration of the
prosecution evidence in the Vigilance case, no fruitful purpose
would be served to allow continuation of the departmental
proceeding on the self-same charge, hence, it is required to be
terminated.
12. On the other hand, Mr. Dash, learned AGA for the State would
submit that irrespective of any such order of acquittal by the
learned Special Judge (Vigilance), Cuttack in T.R. Case No. 11 of
2012, the disciplinary proceeding may be continued as it is
independent of any such criminal case and order of acquittal. It is
further submitted that Disciplinary Authority is having no bar to
deal with any such action against an employee for misconduct
even when the criminal case ended in acquittal, hence, the plea of
the petitioner demanding the departmental proceeding to be
dropped is unacceptable.
13. The moot question is, whether, in the facts and the
circumstances of the case, briefly narrated hereinabove, the
disciplinary proceeding against the petitioner is needed to be
quashed? In Sailendra Nath Mohanty (supra), it is held by a
Division Bench of this Court that when the sole allegation is
misappropriation and the charges in the criminal case against the
employee having failed, the disciplinary action cannot conclude
otherwise and since, the petitioner therein, having been acquitted,
the order of punishment of the Disciplinary Authority against him
was quashed. In Ram Lal (supra), it has been held that where,
after judicial review, the conclusion is that the acquittal in the
criminal case was after full consideration of the prosecution
evidence and that the prosecution miserably failed to prove the
charges levelled, appropriate relief may be granted to the
delinquent. In fact, dealing with such a question vis-à-vis effect of
acquittal in the criminal proceeding, the Apex Court in the above
noted case, considering the factual position and evidence received
therein directed reinstatement with all consequential benefits
declaring the order of termination as illegal holding that the
charges not to be just similar but identical and the evidence with
the examination of the witnesses and all such circumstances to be
same and hence, the orders of the Disciplinary Authority are to be
quashed as also that of the Appellate Authority since allowing
them to stand would be unjust, unfair and oppressive. The
decision in G.M Tank (supra) was referred to by the Apex Court
in the above decision to reach at such a conclusion.
14. The plea of the petitioner is that issuance of show cause notice
dated 21stMarch, 2022 is not legally tenable besides the fact that the
departmental proceeding initiated against him is liable to be
terminated, as he was made to face trial in the Vigilance case on
same set of facts and allegations and received an order of acquittal.
15. In Sailendra Nath Mohanty (supra), it is held that the charges
framed against the delinquent in the criminal case was similar to the
departmental proceeding and when there was an acquittal order, the
decision in such proceeding for a punishment cannot be sustained
despite the fact that by the date, the order of acquittal arrived in the
criminal case, the disciplinary proceeding was already over with the
further conclusion that the delinquent should not be punished on the
same set of charges and evidence.
16. Similarly, in G.M. Tank (supra), the Apex Court while dealing
with an identical case in juxtaposition to the order of acquittal vis-à-
vis punishment in the departmental proceeding against the delinquent
for having accumulated excess income by way of gratification
concluded that if there is honourable acquittal by a competent Court
on the same set of facts, evidence and witnesses and the facts and
evidence in departmental and criminal proceedings to be the same
without there being any iota of difference, the dismissal order should
be set aside. The expression 'honourable acquittal' has been
discussed by the Apex Court in Ram Lal (supra), wherein, it has
been observed that such an expression including the benefit of doubt
used in acquittal orders are not to be understood as magic
incantations; a Court of law is not to be easily carried away by the
mere use of such terminology but to examine the case at hand
referring to the evidence received by the criminal court to ascertain,
whether, it has ended in honourable acquittal of the delinquent. In
other words, the conclusion of the Apex Court in the decision (supra)
is that when the acquittal order in a criminal case is on account of the
prosecution having miserably failed to prove the charge, it would be
an honourable exoneration and while exercising power of judicial
review, the Court is obliged to go through the substance of the
judgment and not the form of expressions used therein.
17. In Babaji Sahoo (supra), this Court, while dealing with a similar
case, concluded to the extent that a disciplinary proceeding may
continue independent of a criminal action but when the nature of
charge is criminal, the disciplinary authority is bound by the findings
arrived at by the criminal court and therein, the order of termination
and decision of the Tribunal was quashed with a view that the
authority concerned could not have arrived at any other conclusion
holding the petitioner therein guilty for any such offence and there
the allegation was of misappropriation and though the FIR was
lodged, it resulted in the submission of a Final Report with a finding
'facts are true but of no clue' taking judicial notice of the decision of
the Apex Court in Capt. M. Paul Anthony Vrs. Bharat Gold
Mines Ltd. and another AIR 1999 SC 1416. The said decision
finds a reference in the judgment of the Apex Court in G.M. Tank
(supra).
18. In R.P. Kapur Vrs. Union of India & another AIR 1964 SC
787, a Constitution Bench of the Apex Court observed that if the trial
of a criminal charge has resulted in conviction, disciplinary
proceedings are bound to follow against the public servants so
convicted and even in case of acquittal, where it is other than
honourable exoneration. Similarly, in Corporation of the City of
Nagpur, Civil Lines, Nagpur and another Vrs. Ramchandra and
others (1981) 2 SCC 714, it has been concluded in the following
words that normally where the accused is acquitted honourably and
completely exonerated of the charges, it would not be expedient to
continue with the departmental inquiry on the very same charges or
grounds or evidence, but merely because the accused is acquitted, the
power of the authority concerned to continue the departmental
inquiry is not taken away nor its discretion is in any way fettered.
19. Having discussed this far, the Court is of the conclusion that a
departmental action may continue parallel to a criminal proceeding
as each of such actions is independent, distinct and mutually
exclusive but where, in a criminal charge, the evidence is similar or
identical and it has led to a decision by order of acquittal, on the
ground of misconduct referable to same charge, the delinquent
should not be subjected to disciplinary proceeding as it would be
grossly unjustified. The Court is alive to the legal position that mere
acquittal is unlikely to fetter the powers of the competent authority to
initiate the departmental action but when there is honourable
acquittal by a criminal court, any such disciplinary proceeding
should be dropped. The Court is also aware of the law that in a
criminal trial, an accused is convicted if the prosecution proves the
case beyond reasonable doubt, whereas, a lesser degree of proof is
required in a departmental proceeding. But, when the charges
levelled are similar or identical in a way the departmental action
would receive such evidence no different than the one in criminal
trial and such trial has ended in acquittal, according to the Court, the
delinquent should be let free. But the Court, for that matter, before
directing any such proceeding to be dropped, is to examine the
judgment of the criminal court.
20. A copy of the judgment in T.R. Case No.11 of 2012 of the
Special Court (Vigilance), Cuttack is at Annexure-8 and the same is
examined. The petitioner was made to face the trial for offences
under Section 7, Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 for having received gratification
as a public servant. The Special Court considered the evidence of the
prosecution and finally, arrived at a conclusion that demand of
gratification could not be proved by the prosecution and therefore,
the petitioner is to be set at liberty forthwith as the charges levelled
against him could not be established thereby directing an order of
acquittal under Section 248(1) Cr.P.C. The Special Court not only
discussed the evidence but also referred to the case laws and
concluded that the prosecution failed to establish the charge against
the petitioner beyond all reasonable doubt. The tainted currency
notes, as made to reveal from the judgment of the Special Court,
were claimed to have been recovered from the petitioner found to
have been contradicted by the complainant at whose instance the trap
was laid. In so far as the evidence of the complainant examined as
P.W.2 is concerned, he at the relevant point of time was running a
liquor business and though lodged the FIR but denied any such
demand by the petitioner as illegal gratification. Not only the
demand by the petitioner but also the alleged recovery of the
currency notes in the manner projected by the prosecution was
contradicted by P.W.2. According to the Special Court, the
complainant, namely, P.W.2 is not a reliable and trustworthy witness
and his evidence runs counter to the overhearing witness in relation
to the manner of recovery of the currency notes. Resting on the
evidence of the other witness, who overheard the interaction of such
demand, the Special Court arrived at a conclusion that when such a
demand could not be established being one of the primary
requirements in a charge of illegal gratification, the prosecution
cannot be said to have made out a case and therefore, the charges
levelled against him have to fail. It has been a decision of the Special
Court after considering the prosecution evidence in whole with a
conclusion that mere recovery of the currency notes without more
would not suffice. It is not brought to the notice of the Court that
such decision of the Special Court has been interfered with in any
appeal filed thereafter.
21. As far as the disciplinary proceeding is concerned, the memo of
charge is based on same set of facts leading to the charges framed
against the petitioner before the Special Court on account of the
allegation that the petitioner demanded illegal gratification. It may so
happen that the demand if not established about the gratification but
such incident being the basis for the departmental proceeding on the
charge of misconduct, with any such conclusion by the Disciplinary
Authority, could ultimately land up in a situation to make one believe
it notwithstanding the decision of the Special Court. If the very
genesis of the criminal case has failed, though, there has been
recovery of tainted currency notes, any ground to proceed against the
petitioner by a departmental action despite an order of acquittal is
fraught with a risk especially when the material witness responsible
for the trap has been found to be unworthy of credit. More or less
similar or connected evidence may have to be appear or must have
been received by the Disciplinary Authority and on the anvil of the
order of acquittal, it is most likely to have a finding on similar lines.
Though, an order of acquittal is not to influence a disciplinary
decision which is based on misconduct and demands a lesser degree
of proof, but having taken into account, all such aspects of the case,
it has to be concluded that the petitioner should not be subjected to
further action with the departmental proceeding pending against him
to be dropped. In other words, the Court is to treat the decision of the
Special Court's judgment as an honourable acquittal vis-à-vis the
petitioner and therefore, to conclude that on the same set of
allegations with a criminal charge not proved, any such action by the
Disciplinary Authority against him should be forthwith discontinued.
22. Hence, it ordered.
23. In the result, the writ petitions stand allowed. As a necessary
corollary, the impugned show cause notice dated 21st March, 2022 at
Annexure-5 is quashed with the disciplinary proceeding vis-à-vis the
petitioner is hereby directed to be dropped with a direction to the
authorities concerned to consider grant of promotion and other reliefs
sought for by the petitioner at the earliest.
(R.K. Pattanaik)
Judge
Kabita/Alok
