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2014 DIGILAW 207 (ORI)

PRADEEP KUMAR BEHERA v. STATE OF ORISSA

2014-03-27

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R. Sarangi, J. - The petitioner, who is working as a Constable LNK/218 under the D.I.B., Baripada assails the notice under Annexure-9 dated 22.9.2010 directing him to attend the departmental proceeding bearing No. MBJ district Prog. No. 15/10 on 30.09.2010 at Headquarter, Baripada and further seeks for a direction to stay the departmental proceeding till disposal of Baripada Town P.S. Case No. 182 of 2010 arising out of G.R. Case No. 668 of 2010 pending in the Court of the learned S.D.J.M., Baripada vide Annexure-7. The brief fact of the case in hand is that the petitioner, who was discharging his duty as Constable bearing LNK 218 while working in Reserve Office at Baripada, Mayurbhanj was involved in a case under sections 498-A/506, IPC read with section 4 of the D.P. Act and section 3 of S.C. and S.T. (P.A.) Act basing on the report of one Pana Singh Constable bearing No. 1194 in connection with Baripada Town P.S. Case No. 182 dated 8.7.2010. The matter was investigated into and in course of investigation, there was prima facie case made out against the petitioner and accordingly, charge was framed against him to stand his trial in the Court of law. Since the petitioner was involved in a criminal case, departmental proceeding has been initiated against him for serious charges of criminal misconduct, moral turpitude involvement in criminal case and violation of Government Servants conduct rules. Accordingly, charge-sheet was submitted followed by initiation of a departmental proceeding against him and on that basis the petitioner has been noticed vide Annexure-9 to participate in the inquiry, which is the subject matter of challenge in the present writ petition. 2. Mr. S.P. Mishra, learned Senior Counsel appearing for the petitioner referring to Misc. Case No. 18437 of 2013 states that the judgment passed in G.R. Case No. 668 of 2010 in Trial Case No. 33 of 2011 dated 26.3.2012, the petitioner has been acquitted by the learned Addl. District Judge-cum-Special Judge, Baripada on the allegation under sections 498-A/406/506 read with section 4 of the D.P. Act and section 3(1)(x) of S.C. and S.T. (P.A.) Act. It is stated that the petitioner having been acquitted and having not found guilty of the offence alleged, the departmental proceeding initiated on the selfsame charge pursuant to which the notice was issued under Annexure-9 should be dropped. 3. It is stated that the petitioner having been acquitted and having not found guilty of the offence alleged, the departmental proceeding initiated on the selfsame charge pursuant to which the notice was issued under Annexure-9 should be dropped. 3. The notice under Annexure-9 was challenged before this Court in the present writ petition and while entertaining the same, this Court passed interim order on 06.10.2010 in Misc. Case No. 16075 of 2010 that there shall he stay of further proceeding of the departmental enquiry against the petitioner till 13.12.2010 and subsequently the same has been extended from time to time and due to subsequent development, prayer was made to drop the departmental proceeding in view of the judgment of the apex Court in G.M. Tank Vs. State of Gujarat and Another, 4. Mr. Sangram Das, learned Addl. Govt. Advocate appearing for the State vehemently argued that the departmental proceeding initiated against the petitioner should not be dropped even though the petitioner has been acquitted in a criminal case that ipso facto cannot debar the authority to proceed with the departmental proceeding initiated against the delinquent officer. He further argued that charges levelled against the delinquent officer in a criminal proceeding, the departmental proceeding has to continue and seeks for dismissal of the writ petition. 5. Admittedly, the petitioner is working as a Constable having LNK No. 218 and so far continuing in the D.I.B., Baripada and is a State Government employee. The departmental proceeding has also been initiated by the competent authority basing upon which he has been called upon to participate in the proceeding by issuing notice under Annexure-9. In course of hearing, none of the Counsel brought to the notice of the Court that the petitioner is a Government employee and he assails the departmental proceeding initiated against him. On the other hand, Mr. S.P. Mishra, learned Senior Counsel appearing for the petitioner proceeded with his argument that the departmental proceeding should be dropped in view of the acquittal of the petitioner on the alleged selfsame charge in the criminal proceeding pursuant to the judgment passed by the learned Addl. District Judge-cum-Special Judge, Baripada in Annexure-10 dated 26.3.2012 and he has relied upon the judgment in G.M. Tank (supra) and basing upon which the judgment was reserved by this Court. 6. District Judge-cum-Special Judge, Baripada in Annexure-10 dated 26.3.2012 and he has relied upon the judgment in G.M. Tank (supra) and basing upon which the judgment was reserved by this Court. 6. In course of preparing judgment, it appears that the petitioner was a State Government employee working under the Police establishment having posted in D.I.B., Baripada and was continuing as a Constable bearing LNK No. 218. The petitioner being a State Government employee, the writ petition at his instance is not maintainable in view of the availability of alternative remedy by approaching the Odisha Administrative Tribunal under the provisions of the Administrative Tribunal Act 1986. It appears that none of the Counsel appearing for the parties brought to this fact to the notice of the Court at the time of hearing the matter. Therefore, the matter has been listed under the heading "To be mentioned" on 19.3.2014 to make a query with regard to the maintainability of the writ petition before this Court. 7. Mr. S.P. Mishra, learned Senior Counsel appearing for the petitioner seeks time till 20th March, 2014 to examine the same and when the matter was taken up on 20th March, 2014, he candidly admitted that the petitioner was a State Government employee and this Court has no jurisdiction. It is further stated that inadvertently, it could not be brought to the notice of the Court on the date of hearing. Learned Addl. Govt. Advocate also admitted the said fact and stated that remedy lies before the State Administrative Tribunal and not before this Court It is further stated by Mr. S.P. Mishra, learned Senior Counsel appearing for the petitioner that as this Court has entertained this petition, and proceeded with the matter for just and proper adjudication of the case, therefore availability of alternative remedy will not preclude, this Court to exercise the power under Article 226 of the Constitution of India. If a forum has been created under the Administrative Tribunal Act to adjudicate upon the disputes of the employees of the State Government, instead of approaching the learned State Administrative Tribunal, the petitioner has straight away invoked the jurisdiction of this Court under Article 226 of the Constitution, which is not permissible. As it appears from the order-sheet, only notice has been issued and the writ petition is not being admitted. As it appears from the order-sheet, only notice has been issued and the writ petition is not being admitted. If the writ petition is not being admitted, merely notice has been issued on the question of admission that itself cannot accrue a right in favour of the petitioner to claim that this Court can exercise the power under Article 226 of the Constitution in exclusion of the provisions contained in the Administrative Tribunals Act. Since a special forum has been constituted under Article 323-A of the Constitution and without availing such remedy before the appropriate forum, if the writ petition will be entertained and admitted under Article 226, it will defeat the very purpose of establishment of such Tribunal. In any case, without bringing to the notice of the Court that this Court has no jurisdiction to entertain the petition for adjudication of a State Government employee, proceeding with the matter for hearing clearly indicates suppression of material facts and this Court has no jurisdiction to entertain the same. Accordingly, the writ petition is dismissed as not maintainable imposing a cost of Rs. 500/- on the petitioner. The said amount shall be paid to the High Court Bar Association. However, liberty is granted to the petitioner to move the appropriate forum for ventilating his grievance, if he is so advised.