SURESH CHANDRA MISHRA Vs. STATE OF ODISHA
HIGH COURT OF ORISSA
SURESH CHANDRA MISHRA
STATE OF ODISHA
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S. K. Sahoo, J. -
(1.) The appellant Suresh Chandra Mishra has filed this appeal seeking to set aside the impugned order dated 30.09.2019 passed by the learned Single Judge in W.P.(C) No.17417 of 2019 wherein while declining to entertain the writ petition, liberty was granted to the appellant to approach the appropriate authority, if he is so advised. The appellant has further prayed to set aside the impugned order dated 07.09.2019 of his dismissal from Government service passed by the Disciplinary Authority and Director, Panchayati Raj & Drinking Water Department, Government of Odisha under Annexure-5.
(2.) The case of the appellant is that a vigilance case bearing Berhampur Vigilance P.S. Case No.04 dated 12.01.1994 for the offences under section 13(2) read with section 13(1)(c) of the Prevention of Corruption Act, 1988 and under sections 409/477-A/34 of the Indian Penal Code was instituted against him on the F.I.R. presented by the Inspector of Vigilance, Paralakhemundi before the S.P., Vigilance, Berhampur on the accusation of misappropriation of Government money amount to the tune of Rs.52,000/- (rupees fifty two thousand only) of eleven beneficiaries by falsifying their accounts and preparing false records under the Integrated Rural Development Programme (in short 'IRDP') Scheme during the year 1991-92 while he was working as Progress Assistant, Raighar Block under the Department of Panchayati Raj and Drinking Water. In the meantime, the appellant was transferred from Raighar Block and he was working as Progress Assistant, Papadahandi Block of Nabarangpur district when the vigilance case was registered.
The appellant was charge sheeted and faced trial in the Court of learned Special Judge (Vigilance), Jeypore in G.R. Case No.04 of 1994(V)/T.R. No.14 of 2007 for offences punishable under section 13(2) read with section 13(1)(c) of the Prevention of Corruption Act, 1988 and sections 409/477-A/34 of the Indian Penal Code and vide judgment and order dated 04.01.2011, the learned trial Court found him guilty of the offences charged and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/- (rupees five thousand only), in default, to undergo R.I. for four months on each count.
The appellant challenged the said judgment and order passed by the learned Special Judge (Vigilance), Jeypore before this Court in CRLA No.59 of 2011 which was admitted and he was directed to be released on bail in Misc. Case No.136 of 2011 and the realization of fine amount imposed by the learned trial Court was directed to be stayed in Misc. Case No.137 of 2011 as per order dated 03.02.2011.
It is the further case of the appellant that the General Administration Department (Vigilance), Odisha vide letter dated 20.01.2011 intimated the Collector, Nabarangpur that the appellant has been convicted and his conviction order has not been stayed and thus he is liable for dismissal in terms of Rule 13 read with Rule 18(1) of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (hereafter '1962 Rules') and accordingly requested to take appropriate action against him. The appellant filed an application for stay/suspension of conviction vide Misc. Case No.233 of 2011 in CRLA No.59 of 2011 and on 25.04.2011 this Court directed that the sentence imposed by the learned trial Court shall remain suspended during pendency of the appeal. The appellant intimated the order dated 25.04.2011 to the respondents and prayed that no coercive action be taken against him and accordingly, he was allowed to discharge his duties.
It is the further case of the appellant that though CRLA No.59 of 2011 is still subjudiced before this Court and all the interim orders passed in different Misc. Cases are also under operation, but then after eight years of passing of such interim orders, all of a sudden the respondent no.2 vide impugned letter dated 07.09.2019 (Annexure-5) dismissed the appellant from Government service with effect from the date of issuance of such order in terms of Rule 13 read with Rule 18(1) of 1962 Rules and as per Article 311 of the Constitution of India in view of the judgment dated 04.01.2011 of the learned trial Court relying on the observation made by the Hon'ble Supreme Court in the case of K. C. Sareen -Vrs.- C.B.I., Chandigarh, 2001 6 SCC 584. The appellant challenged the dismissal order before this Court in W.P.(C) No.17417 of 2019 and accordingly, the learned Single Judge passed the impugned order dated 30.09.2019.
(3.) Mr. Goutam Mukherjee, learned Senior Advocate appearing for the appellant emphatically contended that the learned Single Judge has failed to consider that the impugned order dated 07.09.2019 (Annexure-5) is clearly contemptuous in the teeth of the order dated 25.04.2011 passed by this Court in Misc. Case No.233 of 2011 arising out of CRLA No.59 of 2011. This Court while considering the fact that the respondents are about to dismiss the appellant from service, examined the merits of the case and was prima facie satisfied that the appellant has every likelihood of success in the appeal and accordingly, suspended the sentence imposed by the learned trial Court on the appellant pending disposal of the appeal. He further contended that the impugned dismissal order dated 07.09.2019 vide Annexure-5 has been passed in gross violation of Article 311 of the Constitution of India and that to without considering the aforesaid order dated 25.04.2011 passed by this Court in Misc. Case No.233 of 2011 arising out of CRLA No.59 of 2011. There was no adverse report against the appellant after the order dated 25.04.2011 and even though General Administration (Vigilance) Department, Cuttack vide its letter dated 20.01.2011 intimated the Collector, Nabarangpur to take action against the appellant in view of his conviction but for eight years, nothing was done and all of a sudden rising from deep slumber, the impugned dismissal letter was issued without giving any show cause notice to the appellant and in gross violation of principles of natural justice. According to Mr. Mukherjee, any order which imposes a liability upon a person and prejudicially affects him must be preceded with an opportunity to such person to put forth his case. In the instant case, the impugned order has been passed behind the back of the appellant rendering him remediless. He further contended that the learned Single Judge failed to realize that the impugned order does not satisfy any of the three criteria of Rule 18 of 1962 Rules, basing upon which the said order has been passed. He placed reliance in the case of Surya Narayan Acharya -Vrs.- State of Orissa, 2013 Supp1 OrissaLR 736.
While concluding his arguments, he submitted that since the impugned order of dismissal has been passed in gross violation of principles of natural justice, the alternative remedy, if any, to challenge such order, is not a bar in such cases to entertain the writ petition.;
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