Allowed

Deepaka Das v. State

Orissa HC8 May 2024WP(C)/18457/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking reinstatement. It quashed the order disengaging a Gana Sikhayak for detention beyond 48 hours during a criminal case, citing lack of contractual grounds, denial of hearing, and the Collector's erroneous reliance on a compromise not established by the criminal court. The court directed reinstatement with notional service benefits.

What did the court decide?

Impugned order quashed. Reinstatement directed within two months with notional service continuity from date of disengagement.

Deepaka Das Vs State — Pension and Retirement Benefits | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C). No. 18457 of 2014

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(An application under Article 226 & 227 of the Constitution of India)

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--------------- Deepaka Das ...… Petitioner -Versus-

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State of Odisha and others .... Opposite Parties

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Advocate(s) appeared in this case:-

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For Petitioner : Ms. A.Ray, Advocate. For Opp. Parties : Mr. S.N.Pattnaik, Additional Government Advocate

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CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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8^th May, 2024

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SASHIKANTA MISHRA, J.

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. The petitioner has approached this Court

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with the following prayer;

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“ In view of the aforementioned facts and circumstances it is therefore prayed that your Lordships may graciously be pleased to admit this writ application, issue notice to the Opp.Parties to show cause as to why the order under Annexure5 shall not be quashed and why the petitioner shall not be re-engaged as Gana Sikshyak as

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before acquittal from criminal charges of the Opp. Parties fails to file show cause or files in sufficient cause, then rule NISI will made absolute against them.

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And Your Lordships further be pleased to pass any other order/orders, direction/directions which deemed just and proper to do justice to the petitioner.;

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And for this act of kindness the petitioner shall as in duty bound ever pray.

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The facts of the case, briefly stated, are that the petitioner was engaged as Gana Sikhayak, as per engagement order dated 14.07.2008, and was allotted to Kochilabelari Project Primary School in the district of Kendrapara. While working as such, he was involved in a criminal case being Mahakalpada P.S. Case No. 186 dated 16.08.2013 corresponding to G.R. Case No. 1018/2013 of the Court of learned Sessions Judge-cum-Special Judge, Kendrapara under Section 341/354-A of IPC and Section 10 of the POCSO Act. He was taken to custody and subsequently released on bail. By order dated 18.09.2013, the Collectorcum-Chairman, SSA directed his disengagement on the ground of his detention in jail custody beyond 48 hours. Subsequently, as per judgment passed on 30.04.2014 in the aforementioned criminal case, learned Sessions Judge held

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that the prosecution has failed to bring home the charge against the petitioner and therefore, acquitted him. After passing of the judgment, the petitioner submitted representation dated 19.05.2014 and 18.08.2014, bringing the fact of his acquittal in the criminal case to the notice of the authorities. The representation was addressed to the Block Education Officer. By order dated 21.08.2014, the Collector rejected the representation of the petitioner inter alia holding as follows;

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“6. However, the entire episode, starting from allegation of unfortunate and heinous crime committed by the accused to the compromise made clearly indicate the fact of moral turpitude on the part of Sri. Das, ex-Gana Sikhyak by targeting a minor girl, who is his student a victim. This is not expected from a person holding a noble job of teachership.

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In my considered opinion, re-engaging him as a teacher will give a wrong message to the society even though he has been exonerated due to failure of prosecution to prove the case. Accordingly, his request to re-engage him as Gana-Sikhyak is rejected. Intimate forthwith .”

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Counter Affidavit has been filed by the State Opposite

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Parties justifying the action taken against the petitioner. It has been stated that the petitioner was disengaged because of his detention in jail custody beyond 48 hours. Thereafter,

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he faced trial and was acquitted. However, Clause-4 of the

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engagement order of the petitioner as Gana Sikhayak clearly mentions that the Gana Sikhayak can be removed from the engagement within 30 days, if he/she violates the conditions stipulated in the engagement contract. Mr. Pattnaik further

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submits that mere acquittal in the criminal case does not grant any automatic right on the petitioner to be reinstated as Gana Sikhayak. Moreover, he has not been honourably exonerated and only because of compromise by the victim’s family, he was acquitted.

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Heard Ms. Agnisikha Ray, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned Additional Government Advocate for the State.

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Ms. Ray submits that once the petitioner is acquitted from the criminal charge, it cannot be said that the allegations levelled against him, for which he was removed from service, has any basis. Moreover, the Competent Court, being the Court of Sessions, having passed a judgment of acquittal, it is not open to the Collector to sit in appeal and make his own interpretation of such judgment.

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Mr. S.N.Pattnaik, learned Additional Government Advocate would submit that law is well settled that mere acquittal in a criminal case on the same set of charges does not lead to automatic exoneration from the charges in the departmental proceeding. In the instant case, the petitioner, being a contractual employee, was disengaged because of his involvement in a criminal case and that too, involving offences of moral turpitude. Reading of the judgment of the acquittal, would make it clear that because of noncooperation by the victim and her family, the charges could not be established.

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The facts of the case are not disputed. This Court finds that there is no condition in the engagement order granting power on the authority to remove a Gana Sikhayak only because of his involvement in a criminal case. The petitioner was disengaged on the ground of his detention in jail custody beyond 48 hours. Evidently, the Collector was influenced by the corresponding provision in the Odisha Service Code available for Government Servants, i.e. Rule-12 of OCS (CCA) Rules, which needless to mention, does not apply to Gana

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Sikhayaks. Be that as it may, this Court also finds that no opportunity of hearing whatsoever was granted to the petitioner before taking the extreme step of disengagement of the service. The learned Sessions Judge in his judgment held that the prosecution miserably failed to bring home the charge against the petitioner for which he acquitted him therefrom. In Paragraph 7 of the judgment, learned Sessions Judge has mentioned that “the informant has deposed during cross-examination that the matter has been compromised out of Court and he did not want to proceed further in the case”. Obviously, this is not the finding of the learned Sessions Judge but reference to the statement made by the informant during cross-examination. The Collector, while referring to the above statement reproduced in the judgment, went on to hold as follows:

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“ Perusal of the orders of learned District & sessions Judge clearly reveals that the accused being aware of the serious consequences of the case has entered into a compromise with the father of the victim for which the father of the victim has become hostile.”

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This is nothing but sitting in appeal over the judgment

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passed by the competent Criminal Court. It would be relevant

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to state here that the State never challenged the judgment of acquittal before the higher forum and therefore, it has become final. Such being the fact situation, it is not open to any authority, much less the Collector, to interpret the judgment in a manner that contradicts the ultimate finding of the said judgment, that is acquittal. The further finding under Paragraph 6, already quoted hereinbefore, also runs entirely contrary to the findings of the learned Sessions Judge which, in the circumstances, is not permissible in the eye of law.

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For the foregoing reasons therefore, this Court is constrained to observe that the matter was dealt with from an entirely erroneous perspective and therefore, the impugned order, under Annexure-5, cannot be sustained in the eye of law. Moreover, as already stated, no opportunity of hearing was granted to the petitioner before issuing the order of disengagement of his services.

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Taking all the above-mentioned facts to consideration therefore, the writ application is allowed. The impugned order under Annexure-5 is hereby quashed. The Opposite Party

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No.2 is directed to pass necessary orders reinstating the petitioner in service as early as possible, preferably within two months from the date of production of certified copy of this order. It is however, made clear that the petitioner shall be entitled only to notional benefit of continuity of service from the date of his disengagement without any financial benefits.

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……..………………….. Sashikanta Mishra, Judge

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Orissa High Court, Cuttack, The 8^st May, 2024/ Deepak

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Signature Not Verified

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Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 15-May-2024 19:46:57

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Deepaka Das v. State

Case brief

What is this about?

What did the court decide?

Deepaka Das v. State

Case brief

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