Orissa High Court
Arunodaya Swain vs State Of Odisha on 3 July, 2012
Equivalent citations: 2013 LAB. I. C. 20, (2012) 119 ALLINDCAS 756 (ORI) (2012) 52 OCR 843, (2012) 52 OCR 843
Author: I.Mahanty
Bench: Indrajit Mahanty
THE HIGH COURT OF ORISSA : CUTTACK
CRLA No.409 of 2011
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In the matter of an appeal under Section 17 of the Orissa Special
Courts Act, 2006 against the order dated 24.06.2011 passed by the
Authorised Officer, Special Court, Bhubaneswar in Confiscation Case
No.4 of 2008.
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Arunodaya Swain ...... Appellant
-Versus-
State of Odisha ...... Respondent
(G.A.Department)
For Appellant : M/s.B.K.Behura (Sr. Advocate)
Santosh Kumar Mund,
H.K.Mund, A.K.Dei &
J.Sahu.
For Respondent : Mr.Suraj Mohanty,
Standing Counsel (Vigilance)
PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY
Date of Hearing & Judgment : 03. 07. 2012
I.Mahanty, J.In the present appeal under Section 17 of the Orissa Special Courts Act, 2006, the appellant has prayed to quash the order dated 24.06.2011 passed by the Authorised Officer, Bhubaneswar in 2 Confiscation Case No.4 of 2008, rejecting the application filed by him to drop the confiscation proceeding.
2. Mr.Behura, learned Senior Advocate appearing for the appellant contends that the proceeding under the Special Courts Act, 2006 against the appellant who is a member of the Indian Administrative Service since in the year 1996, has been initiated prior to the amendment, which was published in the Orissa Gazette vide Notification dated 27th November, 2010, amending Rule-2 of the Orissa Special Courts Rules, 2007 and inserting the followings words:
"including Officers of All India Services working under Government of Orissa"
It is asserted on behalf of the appellant that the words "Officers of All India Services working under Government of Orissa"
came to be included under the definition of "Person holding high public office" which has been defined in Clause (e) of Sub-Rule (1) of Rule 2 of the Orissa Special Courts Rules, 2007 with effect from the date of notification.
3. Mr. Behura, learned Senior Advocate submits that the appellant was promoted from the rank of Orissa Administrative Service to the Indian Administrative Service in the year 1996 and the proceeding against the appellant was for the check period from 17.06.1970 to 15.05.1997, i.e. for a period after the appellant joined the Indian Administrative Services (IAS).
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4. It is submitted that the F.I.R., in question was lodged on 3.6.1997 and by the said date, the appellant was already in the services of the All India Services (IAS). Apart from the above, it is asserted by Mr.Behura, learned Senior Advocate for the appellant that, prior to the amendment being brought into force by Gazette Notification dated 27th November, 2010, Rule-2(1)(e) applied only to "public servants" belonging to Grade-A Services of Central and State Government. In this respect, Mr.Behura placed reliance on Swamy's Compilation of C.C.A. Rules and in particular, the Schedule thereof, where Indian Administrative Services, is not indicated in any central services of Group-A. He therefore, asserts that the appellant belongs to the Indian Administrative Services whose services were not categorized under Group-A of the Schedule appended to the classification of Central Civil Services of the Government of India. Therefore, it is to be construed that until the date of amendment i.e., 27 th November, 2010, the officers belonging to the Indian Administrative Services, could not come under the definition of persons holding "high public office" as defined under the Special Courts Rules.
5. Mr.Suraj Mohanty, learned Standing Counsel (Vigilance), on the other hand, contends that the issue raised by the appellant is no more res integra and has already been decided by the Division Bench of this Court presided over by Hon'ble the Chief Justice in the case of 4 Dibyadarshi Biswal and others v. State of Orissa, reported in (2011) 49 OCR-1 and in particular, Para-26 which is quoted hereinbelow:
"26. Further it is contended that the petitioner in W.P.(C) No.390 of 2008 who is an IAS Officer belong to a category other than Officers of 'Group A' service in the definition in the Rules is to be read in the context of categorization of the Government Officers by the State Government on the basis of their "pay scales" into Groups A, B, C and D vide resolution dated 7th June, 1999 and, therefore, he belongs to Group A category in accordance with the said Government resolution and comes under the purview of the Orissa Special Courts Act, 2006."
Apart from the above, it is asserted that the present appeal under Section 17 of the Orissa Special Courts Act, 2006 is not maintainable since no final order under Section 15 of the Special Courts Act has yet been passed and the judgment, though ready for pronouncement, has not been delivered on account of the interim order passed in the present proceeding. He states that the appellant can have no grievance if the trial court delivers its judgment and, it may be open for him to raise all such contentions in appeal, if it becomes necessary.
6. In response to the aforesaid contentions raised by the learned Standing Counsel (Vigilance), Sri Behura, learned Senior Advocate asserts that, the language of Section 17 of the Special Courts Act nowhere limits the scope of appeal and specifically emphasizes that the language incorporated in Section 17 itself permits "any person aggrieved by any order of the authorized officer" to file an appeal to the 5 High Court. Referring to the words "any order", he asserts that the legislative intent behind it, is wide and the Court should give the word "any" the widest interpretation possible. Hence, it is submitted that the contention of the learned Standing Counsel (Vigilance) regarding maintainability ought not to be accepted, since, acceptance of the same would tantamount to limiting the scope of appeal under Section 17 of the Orissa Special Courts Act only to order under Section 15, thereby, frustrating the legislative intent. He further asserts that interpretation canvassed by the Department ought not to be accepted and since the present appeal, arises out of an order rejecting a petition filed by the present appellant, to drop the confiscation proceeding, the appellant is clearly a "person aggrieved" and, as such, is entitled in law to prefer an appeal under Section 17 of the Special Courts Act and hence, the present appeal is maintainable.
Insofar as, the other contentions raised by the learned Standing Counsel (Vigilance) is concerned, Mr.Behura, learned Senior Advocate asserts that, while, there cannot be any doubt that the Division Bench of this Court upheld the constitutional validity of Orissa Special Courts Act, 2006 in a batch of cases which has been decided together and reported in the case of Dibyadarshi Biswal and others v. State of Orissa, (2011) 49 OCR-1. It was further asserted that all such other contentions raised have not been considered in the 6 said batch of cases and the Court, essentially limited its consideration to the constitutional validity of the said Act and Rules. Mr. Behura submits that only the case of Balaram Rout in W.P.(Crl.) No.390 of 2008 was discussed in Para-26 of the judgment in the case of Dibyadarshi (supra) and in Para-31 thereof, the Division Bench of this Court had framed question No.(6) to the following effect:
"(6). Whether the case of Balaram Rout does not fall within the purview of the Special Courts Act ?"
It is asserted that this question framed by the Division Bench of this Court was answered by the said Bench at Para-41 thereof, which is quoted hereinbelow:
"41. With regard to the plea of the petitioner in W.P.(Crl.) No.390 of 2008 he being an I.A.S. Officer belongs to a category other than Officers of Group A service and hence the declaration bringing the petitioner under the Act is illegal and without application of mind, the case of the opposite party No.1 is that by resolution No.17555/Gen. dated 7th June, 1999 (Annexure-D/2), the State Government abolished the erstwhile segmentation of Government Employees into 'Gazetted and Non-Gazetted Categories and classified the posts in Government Offices into four groups, namely, Group-A, Group-B, Group-C and Group-D according to the scale of pay. All posts in the pay-scales the maximum of which is not less than Rs.1,35,000.00 came under Group-A according to the aforesaid resolution. The petitioner being in the cadre of I.A.S. belongs to Group-A category in view of the aforesaid Government resolution and, therefore, comes under the purview of the impugned Act, is the justification given by the State Government. The petitioner has not been able to demonstrate that an I.A.S.Officer belongs to different category other than the four categories mentioned in the aforesaid resolution. No doubt an I.A.S. Officer comes under Group-A post and since the definition of "person holding high public office"7
includes a public servant belonging to Group A service and the petitioner being holder of a Group A post comes within the purview of the impugned Act. Therefore, this point is answered against the petitioner."
While drawing attention of the Court to the above, it is contended that it is only the case of Balaram Rout, which has been decided in the matter and not the case of the appellant. Therefore, the present case is maintainable and the appellant is entitled to get his other contentions to be decided on its own merit in the appeal.
7. After having heard the learned counsel for the respective parties and recording their respective submissions as noted hereinabove, I am of the considered view that the objection regarding the maintainability of the present appeal needs to be dealt with first.
8. Insofar as Section 17 of Special Courts Act is concerned, the same is quoted hereunder:
"17. Appeal - (1) Any person aggrieved by any order of the authorized officer under this Chapter may appeal to the High Court within thirty days from the date on which the order appealed against was passed.
(2) Upon any appeal preferred under this section the High Court may, after giving such parties, as it thinks proper, an opportunity of being heard, pass such order as it thinks fit.
(3) An appeal preferred under Sub-section(1) shall be disposed of within a period of three months from the date it is preferred, and stay order, if any, passed in an appeal shall not remain in force beyond the prescribed period of disposal of appeal."
Chapter-III of the Special Courts Act begins from Section-13 and ends in Section-19. While Section-13 stipulate the requirements of 8 an "application" for confiscation. Section 14 mandates for "issue of notice" for confiscation upon the person in respect of whom the application is made, calling upon him, within such time as may be specified in the notice (which shall not be ordinarily less than thirty days) to indicate the source of his income, earnings or assets, out of which or by means of which he has acquired such money or property, the evidence on which he relies and other relevant information and particulars and most importantly, and "to show cause as to why all or any of such money or property or both, should not be declared to have been acquired by means of the offence and be confiscated to the State Government". Pursuant to such notice, a delinquent to whom such notice has been issued, has a right to give his "show cause" and to respond to the queries made for confiscation. On consideration of the show-cause reply, the proceeding under Section 15 of the Special Courts Act concludes by passing an order of confiscation. Section 17 thereof provides an "aggrieved person" a right to file an appeal against "any order passed by the authorized officer".
9. It is asserted by the learned Standing Counsel (Vigilance) that it is only the final order passed under Section 15 of the Special Courts Act which can be the subject matter of an appeal under Section 17 thereof, but no other order passed by the Authorised Officer can be permitted to be the subject matter of an appeal.
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10. On a reading of Section 17, it is clear therefrom that the mandate of Legislature is to vest the right to a "person aggrieved" to file an appeal before the High Court against "any order of the Authorized Officer".
11. In this respect, it would be apt to refer to the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra v. Marwanjee F.Desai and others, (2002) 2 SCC 318. In the said case, Hon'ble Supreme Court dealt with the scope and ambit of Section 7 (Appeals) of the Bombay Government Premises (Eviction) Act, 1955. For better appreciation of the matter, Section 7 of the said Act is quoted hereunder:
"7. Appeals.-(1) An appeal shall lie from every order of the competent authority, made in respect of any government premises, under Section 4 or Section 5 to an appellate officer who shall be the District Judge of the district in which the government premises are situate, or such other judicial officer in that district, being a judicial officer of not less than ten years' standing, as the District Judge may designate in this behalf."
In the facts of the aforesaid case, it appears that various plots of land belonging to the State Government which were leased out to several occupants since 1968 and since the Government wanted the plots for a public purpose, the leasees were issued show-cause notice under Section 4(2) of the Act. On receipt of show-cause reply, the competent authority directed dropping of the proceedings. The State 10 Government being aggrieved thereby, preferred an appeal under Section 7 of the Act before the City Civil Court, Bombay. There a preliminary objection was raised by the leasee for maintainability of the appeal. Such objection was over-ruled by the City Civil Court, Bombay. The respondents moved to the High Court under Article 226 of the Constitution of India. The High Court allowed the writ petition holding as follows:
"Neither under Section 7 of the Act nor under any other provisions of the enactment, a right to prefer an appeal against any of the decisions of the competent authority has been conferred on the State Government."
The aforesaid judgment of Bombay High Court was the subject matter of challenge before the Hon'ble Supreme Court. In Para-8 of the judgment, the following was concluded:
"8. xx xx The language used as noticed above in Section 7 containing the provision of appeal has to be interpreted in its proper perspective and not in a manner restrictive. If the reasoning provided by the High Court is to be accepted then in that event the statute shall have to be given a go-by and to be rendered a complete otiose. The word "every", appearing in Section 7 immediately before the word "order", stands out to be extremely significant so as to offer an opportunity of appeal in the event of there being an order against the Government."
And in Para-11 of the judgment is as follows:
"11. xx xx The legislature has deliberately used "every order" and if the restrictive meaning is attributed, as has been so done by the High Court, then the word "every" in any event becomes totally redundant but since the legislature avoids redundancy every word used in 11 the particular provision shall have to be attributed a meaning and attribution of any meaning to the word "every"
by itself would negate the interpretation as found favour with the High Court. The word "every" has been totally ignored, which is neither permissible nor warranted."
12. In the light of the aforesaid authoritative pronouncement of the Hon'ble Supreme Court if the aforesaid law laid down by the Hon'ble Supreme Court is applied to the facts of the present case and conclusion of Para-11 if re-written in the circumstances of the present case, would read as such:
The legislature has deliberately used the word "any order of the authorized officer" in Section 17 of the Special Courts Act and if any restrictive meaning is attributed (as canvassed on behalf of the Vigilance Department), then the word "any order" would become redundant and since the legislature avoids redundancy, every word used for the particular provision shall have to be attributed a meaning and the meaning to the word "any order of the authorized officer" to order passed under Section 6 of the Orissa Special Courts Act by itself would negate the legislative intent behind the aforesaid provision.
13. In the "Principles of Statutory Interpretation", (Tenth Edition 2006) of Justice Guru Prasanna Singh, Former Chief Justice of Madhya Pradesh High Court published by Wadhwa and Company Nagpur and in particular, Page-440 is as follows: 12
"Construction of General Words - In a case relating to section 26 of the Factories Act, 1937, which enjoins occupiers of a factory to provide safe means of access to 'every place' at which any person has at any time to work, the House of Lords held that a point on a vessel, which was being repaired in a dockyard, where a work-man had to work was within the words 'every place' as occurring in the section. Gardiner v. Admiralty Commrs., (1964) 2 All ER 93 (HL). It was argued in this case that section 26 was to be found in fasciculus of sections dealing with a safety provision which were restricted to plant and premises of the factory, and therefore, the words 'every place' in section 26 should also be restricted to plant and premises of the factory thereby excluding any object which came for repairs in the factory. This argument was rejected and in that connection LORD GUEST observed: "There is no principle which would compel a Court to restrict general words to be found in one section by a limitation to be found in other surrounding sections dealing with different matters".
(lbid,p.96.) In the light of the judgments referred hereinabove as enunciated by the Hon'ble Supreme Court, the Court ought not to give a restrictive meaning to any word to found in Section 17 and, therefore, the contention raised on behalf of the State by the learned counsel for the Vigilance Department regarding maintainability cannot be accepted.
It is well settled in law, by the Hon'ble Apex Court in various judgments referred hereinabove that while interpreting such a clause, the same has to be given the widest amplitude since every "aggrieved person" must be allowed an opportunity for redressal of his grievance. Any limited interpretation to Section 17 would in effect limit the legislative intent. Therefore, the term "any order passed by the 13 Authorized Officer" cannot in any manner be restricted only to an order under Section 15. Hence, I am of the considered view that the objection raised by the Vigilance Department to the maintainability of the present appeal, is not well based and hence, the said objection is rejected and the Court concludes that the present appeal against the impugned order passed by the Authorized Officer, in the present case, is maintainable.
14. The next contention on which, the case depends is, as to whether the issue raised by the appellant is covered by the judgment of the Division Bench of this Court in the case of Dibyadarshi Biswal (supra). It has been noted in Para-26 the assertion made by Sri Balaram Rout (writ petitioner) in W.P.(Crl.) 390 of 2008 (which was tagged along with the batch of cases and disposed of by a common order) has been rejected. Balaram Rout's contention was noted in Para-26 of the judgment of Dibyadarshi Biswal (supra) passed by the Division Bench of this Court, the question was framed in Para-31 and answered in Para-41 thereof, I am of the considered view that this Court is bound by the judgment of the Division Bench. This Court is informed that the judgment in the batch of cases in the case of Dibyadarshi Biswal (supra) is under challenge before the Supreme Court in Criminal Appeal No.365 of 2011 which remains pending adjudication by the Apex Court. It is also relevant to point out that the 14 present appellant had filed in W.P.(Crl.) 663 of 2008 before this Court and had raised the same contention as raised herein and raised by Balaram Rout in Para-90 thereof. The appellant's writ petition was disposed of by the common judgment of this Court in the case of Dibyadarshi Biswal (supra), hence, the same must also be held to have been rejected by the Division Bench.
15. Therefore, this Court is of the view that since the Division Bench of this Court found no merit on the contentions of the appellant regarding non-applicability of the Special Courts Act to IAS officers, this Court rejects the prayer made in the present appeal to set aside the impugned order on merits.
Accordingly, the CRLA stands dismissed and interim order dated 05.09.2011 passed in Misc. Case No.1069 of 2011 stands vacated but in the circumstances without cost. The Authorized Officer is at liberty to pronounce the judgment.
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I.Mahanty, J.
ORISSA HIGH COURT: CUTTACK 3rd July, 2012/RKS