Orissa High Court
Afr Samir Ranjan Sahoo vs State Of Odisha & Another ..... Opp. ... on 10 August, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WPC (OAC) NO. 1052 OF 2013
In the matter of an application under Article 226 of the
Constitution of India.
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AFR Samir Ranjan Sahoo ..... Petitioner
-Versus-
State of Odisha & another ..... Opp. Parties For Petitioner : M/s. Sidheswar Mallik, P.C. Das and M.Mallik, Advocates For Opp. Parties : Mr. M. Balabantaray, Standing Counsel P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI DECIDED ON : 10.08.2021 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the order of suspension dated 14.02.2012 under Annexure-4, the charge memo under Annexure-5 and the order of punishment dated // 2 // 28.02.2017 imposed by the disciplinary authority vide Annexure-11.
2. The factual matrix of the case, in brief, is that one Bimal Prakash Dash, an UTP (Under Trial Prisoner), after being released on bail, lodged an FIR against the petitioner, which was registered as Kendrapara P.S. Case No.176 of 2012, corresponding to G.R. Case No.1036 of 2012 in the court of learned S.D.J.M., Kendrapara under Sections 341/323/ 324/506 of the Indian Penal Code ("IPC" for short). He also filed an application before the National Human Rights Commission, New Delhi, and the said Commission, on 12.03.2012, submitted a report that the allegations levelled against the petitioner were found false. Though a preliminary enquiry was conducted by one Niranjan Das, Superintendent District Jail, Dhankanal and in his report submitted on 20.10.2012 he fixed the responsibility on the petitioner, but, thereafter, on the FIR allegations an inquiry was conducted by the SDPO, // 3 // Kendrapara, who submitted his report on 22.10.2012 which proved that the allegations in the FIR were false. 2.1 In spite of that, the petitioner was placed under suspension on 12.12.2012, pending drawal of departmental proceeding, and his headquarter was fixed at Koraput, but, subsequently, on 23.03.2013. he was reinstated in service pending finalization of the proceeding. On 17.12.2012, the petitioner submitted representation praying for fixing his headquarter at Kendrapara. When such representation was pending, on 03.01.2013, Departmental Proceeding No.15/2012 was drawn and charges were framed on the basis of the FIR allegations. The charges in the departmental proceeding and the criminal proceeding are similar and same set of documents and witnesses were sought to be relied upon and examined. His representation for change of headquarter was rejected on 22.01.2013. Then, he again submitted his representation on 25.01.2013 for supply of documents.
// 4 // 2.2 After investigation, the police submitted final form (report) on 28.02.2013 before the learned S.D.J.M., Kendrapara stating that the allegations made in the FIR are disproved and returned the case as false. Thereby, challenging the departmental proceeding, the petitioner filed O.A. No.1052 (C) of 2013 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack (which has been transferred to this Court on abolition of the tribunal and registered as the above noted writ petition) to quash the proceeding. The tribunal, vide interim order dated 13.05.2013, directed that the opposite parties may go ahead with enquiry but final order shall not be passed without leave of the tribunal.
2.3 Consequently, the petitioner filed written statement of defence on 20.03.2014 denying the charges. The Additional DGP, as the disciplinary authority, directed for a regular enquiry under Rule- 15(4) of CCA Rules and appointed one Prasanna Kumar Nayak, Superintendent, District Jail, Sundargarh as // 5 // enquiring officer on 14.05.2014. After conducting enquiry, the enquiring officer submitted his report on 06.05.2016 to the disciplinary authority that the charges framed in the departmental proceeding against the petitioner were not established. But, a second show- cause notice was issued to the petitioner on 19.09.2016 differing with the findings of the enquiring officer and the basis of such note of difference was the preliminary enquiry report. A representation, as against the note of difference and the findings of the enquiring officer, was submitted by the petitioner on 25.10.2016, which was forwarded to the disciplinary authority. 2.4 Thereafter, a show-cause notice proposing punishment issued, vide letter no.27789 dated 10.11.2016, was communicated to the petitioner. On receipt of the same, the petitioner submitted his reply to the show-cause on 29.11.2016. Even though the interim order passed by the tribunal directing not to pass any final order in the proceeding, was in force, the final order of punishment was passed on 28.02.2017 in // 6 // gross violation of the interim order. In any case, the petitioner filed appeal on 22.06.2017 stating that the order of punishment passed on the basis of preliminary enquiry report has lost its significance after regular enquiry was directed and reported was submitted in favour of the petitioner. The appellate authority, vide order dated 21.03.2018, set aside the order of punishment and directed the disciplinary authority to continue with the proceeding after obtaining leave from the tribunal.
2.5 The wife of UTP Bimal Prakash Das filed a complaint case and the same was rejected on 26.04.2018 for want of sanction. It is to be noted that after submission of final report by the police, notice was issued to the informant Bimal Prakash Das. As he was died by that time, his widow Urmila Das submitted objection petition, which was registered as ICC Case No.399 of 2016. The said complaint case was arising out of G.R. Case No.1036 of 2012, which was the corresponding G.R. case, which had arisen out of the // 7 // FIR lodged by the UTP Bimal Pradash Das and registered as Kendrapara P.S. Case No.176(26) dated 26.09.2012.
3. In the above backdrop, Mr. S. Mallik, learned counsel for the petitioner contends that the departmental proceeding, which has been initiated on the basis of the charges alleged in the FIR, should be dropped, as the final report in the criminal case has been submitted. He further contended that for the self same charges, since the departmental proceeding and the criminal proceeding are continuing and the petitioner has been abdicated in the criminal proceeding, as after the investigation police disproved the allegations made in the FIR lodged by the appointing authority, who is the disciplinary authority, in that case departmental proceeding should be dropped, as its further continuance would cause prejudice to the petitioner.
In support of his contention, learned counsel for the petitioner has relied upon the judgments of the // 8 // apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679; State Bank of India v. Mohammed Abdul Rahim, (2013) 11 SCC 67; and Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC
301.
4. Mr. H.K. Panigrahi, learned Additional Standing Counsel for the State contended that since the departmental proceeding is continuing, let the petitioner approach the said authority stating all the facts, who shall take steps in accordance with law.
5. This Court heard Mr. S. Mallik, learned counsel for the petitioner and Mr. H.K. Panigrahi, learned Additional Standing Counsel for the State by hybrid mode. Pleadings having been exchanged between the parties and with the consent of learned counsel for the parties the writ petition is being disposed of finally at the stage of admission.
6. Having regard to the rival contentions raised by learned counsel for the parties and on perusal of the // 9 // records, this Court finds that for the self-same allegations both criminal and departmental proceedings were initiated against the petitioner. It is well settled in law that once on conclusion of the investigation the police disproved the allegations made in the FIR and submitted final form, in that case, the disciplinary proceeding initiated for the self same charges should be dropped. In the present case, when the interim order passed by the tribunal was continuing, in the departmental proceeding punishment was imposed and against that an appeal having been preferred the appellate authority, taking into consideration the grievance of the petitioner, set aside the punishment imposed and remitted the matter back to the disciplinary authority. Meanwhile, a development has taken place with regard to submission of final form by the police authority indicating that the allegations in the FIR were found to be false. Furthermore, the appointing authority, who is the disciplinary authority, did not give sanction for the criminal proceeding. The // 10 // departmental proceeding is therefore liable to be dropped.
7. In Capt. M. Paul Anthony and Mohammed Abdul Rahim (supra), the apex Court has categorically held that where departmental and criminal proceedings are based on similar charges and same set of documents and witnesses are relied on, it would be unjust, unfair and oppressive to continue the departmental proceeding after the delinquent is acquitted in the criminal proceeding. The ratio decided in the above case is squarely applicable to the present case. When the FIR lodged and ICC case instituted, due to want of sanction, the criminal proceeding initiated against the petitioner has been dropped, in that view of the matter, if on the selfsame allegation disciplinary proceeding is continuing then that should be dropped.
8. In the case of Nirmala J. Jhala (supra), the apex Court held that the preliminary inquiry and its report loses significance once regular enquiry is initiated by issuing charge sheet to delinquent. Thereby, // 11 // once the memorandum of charge has been submitted, the preliminary enquiry has lost its force. Consequentially, the disciplinary proceeding cannot sustain in the eye of law.
9. In the above view of the matter, this Court directs that let the petitioner file a comprehensive application indicating all the facts before disciplinary authority, within a period of two weeks hence, to drop the departmental proceeding, and in such event, the disciplinary authority shall do well to consider the same in accordance with law and pass appropriate order within a period of eight weeks from the date of receipt of the application.
10. With the above observation and direction, the writ petition stands disposed of.
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DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 10th August, 2021, Alok