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Sudarsan Acharya Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 1011 of 1981
Judge
Reported in1984(II)OLR996
ActsThe Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 - Rules 12, 12(6) and 13(5)
AppellantSudarsan Acharya
RespondentState of Orissa and ors.
Appellant AdvocateP.K. Misra, Adv.
Respondent AdvocateAddl. Govt. Adv.
DispositionApplication dismissed
Cases Referred(Gurunath Prasad v. State of Orissa and Ors.). This
Excerpt:
.....guilty of a charge in a criminal case is much stiffer than the standard of proof required in a disciplinary proceeding. 1723 (para-8). thus acquittal in a criminal trial is no bar for starting a departmental proceeding if the authority is satisfied that there are materials in support of the charge. 73, as well as some other decisions of different high courts. but where the criminal court did not acquit him honourably but gave him benefit of doubt stating that though there was a strong suspicion against him the prosecution evidence did not completely exclude the other possibility, further departmental enquiry in respect of the same subject-matter is not excluded especially as the standard of proof required in such an enquiry against a delinquent public servant is not the same as that..........that the period from 24.5.1966 till 24.7.1970 should be treated as suspension. in fact, under the rules suspension as such is also a punishment as provided in rule 13(5). we, therefore, do not find any merit in the second contention of mr. misra.7. so far as his third submission is concerned, we also do not see any force in the same, inasmuch as the order of discharge passed by the disciplinary authority has been modified to one of compulsory retirement by the appellate authority which has been confirmed again by the state government while entertaining a review against the order of the revenue divisional commissioner and the order of compulsory retirement cannot, therefore, be said to be illegal in any manner.8. it the result, therefore, all the submissions made on behalf of the.....
Judgment:

G.B. Patna1k, J.

1. The petitioner, who was working as Revenue Supervisor has challenged in this writ petition the punishment inflicted on him in a departmental proceeding. On the date the punishment was inflicted upon, he had been reverted to the post of Lower Division Clerk in Tahsil Office at Jagatsinghpur. The past service record of the petitioner is not necessary for adjudicating the dispute in the present petition and suffice it to say that the petitioner joined as Kanungo in Grow More Food Scheme of 19.3.1945 and after getting some promotions had been promoted to the post of Revenue Supervisor on 1. 9. 1152. He was reverted to the post of Lower Division Clerk on 23.6.1964, and while working as such at Jagatsinghpur, he received a letter that some money was outstanding against him which he had collected while he was discharging the function of Chakla Kanungo. By Collector's order dated 19.5.1966, Annexure-2 to the writ petition, the petitioner was placed under suspension and a departmental proceeding was initiated against him on the charge of misappropriation of Government money. The petitioner submitted his explanation, but as in April, 1967, a criminal case was instituted under Section 409, I.P.C., the departmental proceeding was kept in abeyance. The petitioner thereafter was convicted by the 'Sub divisional Judicial Magistrate, Kendrapara, under Section 409, I.P.C., by judgment dated 16.3.1970. Thereafter on 10.7.1970, the petitioner was dismissed from Government service purporting to be under Rule 18 (1) of the Civil Services (Classification, Control and Appeal) Rules, 1962 (for short referred to as the 'Rules'). This order of dismissal has been annexed as Annexure-4 to the writ petition. This order was served on the petitioner on 24.7.1970. The petitioner preferred an appeal against the conviction and the sentence passed by the Sub divisional Judicial Magistrate and the Sessions Judge, Cuttack, by judgment dated 20.12.1970 in Criminal Appeal No. 74 of 1970 (Annexure-5 ) set aside the conviction and sentence passed by the Sub divisional Judicial Magistrate. The Collector, Cuttack, thereafter withdrew the order of dismissal passed on 10.7.1970, but simultaneously also ordered that the petitioner should continue under suspension until further orders. This order of the Collector has been annexed as Annexure-8 to the writ petition. The departmental proceeding which had been kept in abeyance was further continued and in addition to the charges already framed, an additional charge of gross negligence of duty was also framed and enquired into the said departmental proceeding. The enquiring officer submitted his report (Annexure-9) wherein he found that the petitioner was guilty of serious dereliction of duty assigned to him. He also found the petitioner guilty of the charge of temporary misappropriation of Government dues, but since the amount in question had been deposited, he had suggested that a lenient view should be taken and the petitioner should be reinstated in service and further suggested that the period of suspension should be treated as such. The disciplinary authority, however, did not agree with the suggestion of the enquiring officer regarding the quantum of punishment and on the findings of the enquiring officer, issued a second show-cause notice as to why the punishment of dismissal should not be inflicted upon the petitioner. On receiving the reply, the disciplinary authority has inflicted two punishments, namely, the petitioner was discharged from Government service and the period of suspension was treated as such. This order dated 2.9.1976 has been annexed as Annexure-10 to the writ application. The petitioner preferred an appeal to the Revenue Divisional Commissioner, who, by his order dated 14.12.1977 (Annexure-11) modified the punishment to the effect that the petitioner be compulsorily retired from the date of the order of the disciplinary authority. The petitioner preferred a review petition to the Government and the State Government ultimately by order dated 21.7.1979 (Annexure-12) confirmed the order of the Revenue Divisional Commissioner compulsorily retiring the petitioner from service and directed that the period from 24.7.1970 to 1.7.1972 be treated as on duty. This order of the Government is being challenged in this writ petition.

2. Mr. P.K. Misra, the learned counsel for the petitioner, mainly raises three contentions-

(i) The delinquent Government servant having faced a criminal case for the charge of misappropriation and having been acquitted in the said case, the departmental proceeding on the self-same allegation and charges is without any basis and, therefore, no punishment could be inflicted upon the petitioner on the finding of the said departmental proceeding.

(ii) The order of suspension passed on 19.5.1966 merged with the order of dismissal passed on 10.7.1970. The dismissal order though purports to be one under Rule 18(1) of the Rules, the said Rules have no application and, therefore, when the order of dismissal was withdrawn on 1.7.1972, the petitioner must be deemed to be on duty for the entire period, namely, 19.5.1966 till 1.7.1972.

(iii) The order of the Government has treated only the period from 24.7.1970 to 1.7.1972 as on duty, though in law, the period from 24.5.1966, the date of order of suspension till 24.7.1970, the date on which the order of dismissal was served on the petitioner, should also be treated as on duty. The order of compulsory retirement cannot be given a retrospective effect and must be operative with effect from 14.12.1977 and not earlier.

3. The learned Additional Government Advocate on the other hand has submitted that the acquittal of the petitioner in criminal appeal in no way stands as a bar for continuance of the departmental proceeding, particularly when the petitioner was acquitted because of a doubt in the mind of the appellate Court as to absence of criminal intention in the mind of the delinquent. That apart, he has further submitted that the additional charge of dereliction of duty flows out of the order of the appellate Court in the criminal appeal and the petitioner has been found guilty thereunder in the departmental proceeding.

4. So far as treating the period of suspension from 24.5.1966 to 24.7.1970 is concerned, he relies on Rule 12(6) of the Rules which authorises the disciplinary authority to indicate while passing the final order as to how the period of suspension would be treated. He has also submitted that the order of compulsory retirement has not been given any retrospective effect and the disciplinary authority had discharged the petitioner from service and that order of discharge was merely modified to one of compulsory retirement and, therefore, it cannot be said that the order of compulsory retirement has been given any retrospective effect.

5. So far as the first submission of Mr. Misra, the learned counsel for the petitioner is concerned, there cannot be any doubt that the procedure as well as standard of evidence necessary to hold an accused guilty of a charge in a criminal case is much stiffer than the standard of proof required in a disciplinary proceeding. To establish the charge against a delinquent Government servant, the Criminal Court requires proof beyond reasonable doubt, whereas in a departmental proceeding, a delinquent Government servant can be held guilty on preponderance of probability. It has therefore, been laid down by judicial pronouncement that a criminal case and a departmental proceeding can simultaneously continue and further an acquittal in a criminal case does not ipso facto act as a bar for continuance of the departmental proceeding. Notwithstanding an order of acquittal in a criminal case, an employer may yet continue departmental proceeding and if the delinquent Government servant is found guilty of the charges, the disciplinary authority can inflict punishments as empowered under the Rules, particularly when the order of acquittal is on technical ground. In the case of Bishan Prasad Mohpatra v. Superintendent of Police, Balasore and Anr., 1971(1) C.W.R.1, G.K. Misra, C.J., speaking for the Court held:

'......An officer already acquitted may be found guilty in a departmental enquiry as in the latter a less rigorous standard of proof is insisted upon. It is for this reason that on the same cause of action both a departmental enquiry and a criminal trial can be initiated against him either simultaneously or one after the other. (See AIR 1964 S.C. 375 : S.A. Vendataraman v. Union of India and Anr.; and AIR 1964 S.C. 72 (para-71): S. Pratap Singh v. State of Punjab. The findings of a Criminal Court are however not binding in the departmental enquiry. (See, AIR 1963 S.C. 1723 (para-8). Thus acquittal in a criminal trial is no bar for starting a departmental proceeding if the authority is satisfied that there are materials in support of the charge.'

Mr. Misra, the learned counsel for the petitioner, has submitted that this decision requires reconsideration as according to him this runs somewhat counter to the decision of this Court in the case of State of Orissa v. Sailabehari Chatterji, A.I.R. 1963 Ori. 73, as well as some other decisions of different High Courts. He placed reliance on the case of Qamarali Wahid Ali v. State of Madhya Pradesh, A.I.R. 1959 M.P. 46; Shaik Kasim v. The Superintendent of Post Offices, Chinglepnt Dn. and Anr., A.I.R. 1965 Mad. 502; Bhagwat Charan V. State of Uttar Pradesh and Ors., 1973 (2) S.L.R., 238 and State of Assam and Anr. v. Raghaba Rajgopalachari, 1972 S.L.R. 44. We have carefully read the judgment of this Court reported in A.I.R. 1963 Ori. 73, and in our view there is no conflict or inconsistency between that decision and the decision referred to earlier, namely, 1971(1) C. W. R. 1.

In the case of State of Orissa v. Sailabehari Chatterji, AIR 1963, Ori. 73, this Court held :

'Where a Criminal Court had acquitted a public servant honourably, a subsequent enquiry in respect of the same allegations may offend the rules of natural justice and may have to be quashed. But where the Criminal Court did not acquit him honourably but gave him benefit of doubt stating that though there was a strong suspicion against him the prosecution evidence did not completely exclude the other possibility, further departmental enquiry in respect of the same subject-matter is not excluded especially as the standard of proof required in such an enquiry against a delinquent public servant is not the same as that required against an accused in a criminal case.'

That apart, in a recent judgment in the case of Corporation of the City of Nagpur, Civil Lines, Nagpur and Anr. v. Ramchandra G. Modak and Ors., A.I.R. 1984 S. C. 626, Fazal Ali, J. held:

'The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the Criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges, it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered. ...'

This being the position of law, we do not find any substance in the contention of Mr. Misra nor is there any necessity to refer the matter to a larger Bench for reconsideration of the decision of this Court in Bishna Prasad Mobapatra's case (supra). At this stage, it would be appropriate to quote the conclusion of the Additional Sessions Judge who allowed the appeal:

'Undoubtedly, the appellant might be guilty of gross dereliction of duties, just like his superiors in not observing the rules, but it seems to me that there is a reasonable doubt as to whether the appellant's intention was dishonest in the sense that he intended to use the money to the detriment of Government during the period that the money was not deposited in the treasury. There is no direct evidence of actual breach of trust in the sense of money being actually used for the private purpose of the appellant. In the above premises, for the reasons I have given, there is a reasonable doubt as to the intention of the accused-appellant. I would, therefore, allow the appeal and set aside the conviction.'

Thus there cannot be any manner of doubt that the acquittal of the petitioner in the criminal case was not an honourable acquittal nor the petitioner has been completely exonerated of the charges by the appellate Court. A perusal of the enquiry report further reveals that the enquiring officer has not based his findings on the self-same evidence which have been adduced in the criminal case. Further the additional charge of dereliction of duty is rather based on the findings of the Criminal Court. We do not, therefore, find any infirmity in the continuance of the departmental proceeding nor in the finding's of the enquiring officer holding the petitioner guilty of the charge of gross dereliction of duty and accordingly, reject the submission of Mr. Misra, the learned counsel for the petitioner, on that score.

6. So far as the second contention of Mr. Misra Is concerned, the learned counsel elaborates his submission on this score on the basis of a decision of this Court reported in 47 (1979) C.L.R. 532 (Gurunath Prasad v. State of Orissa and Ors.). This case is clearly distinguishable on facts since the order of suspension in the case was passed subsequent to the arrest of the delinquent Government servant in a criminal case and, therefore, the Court came to the conclusion that the order of suspension was one under Rule 12 (1) (b) which obviously merged in 'the order of dismissal and ceased to exist. An order of suspension under Rule 12(1) (h) is an interim order which remains in force during the pendency of the criminal proceeding and spends its force upon termination of the criminal proceeding. No further order, of suspension had been, passed in that case after the acquittal of the delinquent Government servant in the criminal case and Rule 12(4} was pressed into service, but the Court cams to the conclusion that since the order of dismissal was not one under Rule 18, Rule 12(4) would have no application. But in the present case, it is an admitted fact that the petitioner was suspended much prior to the initiation of the criminal case and while a departmental proceeding was under contemplation. From the narration of facts already made, it is clear that the order of suspension is dated 19.5.1966 whereafter a regular departmental proceeding was initiated against the petitioner and his explanation was received and at that stage in April, 1967, the criminal case was started for which the departmental proceeding was kept in abeyance. After the conviction of the petitioner in the criminal case, the petitioner was dismissed from service but the order of conviction having been set aside by the Sessions Judge in appeal, the dismissal order was withdrawn on 1.7.1972 and the petitioner was again continued under suspension and the disciplinary proceeding against the petitioner continued. On termination of the disciplinary proceeding, the competent authority in exercise of his power under Rule 12(6) has decided as to how the period of suspension would be treated. In our opinion, the authority was well within his jurisdiction to pass appropriate orders under Rule 12 (6). Mr. Misra's submission that on dismissing the petitioner from service because of the criminal conviction, it must be held that the disciplinary proceeding came to an end is devoid of force since prior to that order, the disciplinary proceeding had been kept in abeyance and the said proceeding again revived when the order of dismissal was withdrawn on account of the appeal being allowed and conviction of the petitioner having been set aside. In our opinion, therefore, the ratio of Gurunath Pradhan's case (supra) on which the petitioner has relied has no application to the facts and circumstances of the present case and no grievance can be made with the decision of the competent authority deciding that the period from 24.5.1966 till 24.7.1970 should be treated as suspension. In fact, under the Rules suspension as such is also a punishment as provided in Rule 13(5). We, therefore, do not find any merit in the second contention of Mr. Misra.

7. So far as his third submission is concerned, we also do not see any force in the same, inasmuch as the order of discharge passed by the disciplinary authority has been modified to one of compulsory retirement by the appellate authority which has been confirmed again by the State Government while entertaining a review against the order of the Revenue Divisional Commissioner and the order of compulsory retirement cannot, therefore, be said to be illegal in any manner.

8. It the result, therefore, all the submissions made on behalf of the petitioner fail and the writ application is dismissed being devoid of merits, but in the facts and circumstances of the case, there would be no order for costs.

P.C. Misra, J.

9. I agree.


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