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2017 DIGILAW 1154 (ORI)

Suresh Kumar Mishra v. State of Odisha

2017-10-13

B.R.SARANGI

body2017
JUDGMENT Dr. B.R. SARANGI, J. - The petitioner was working as Grama Panchayat Technical Assistant (GPTA) on contractual basis and was posted in the office of Boudh Panchayat Samiti, Boudh. While working as such, having been sponsored by the Chairman Committee of Chief Engineers and Engineer-in-Chief (EIC), Odisha, he was posted to District Rural Development Agency (DRDA), Boudh. Subsequently, Panchayati Raj Department, which is the controlling authority of the DRDA, posted the petitioner under Boudh Block and allowed to discharge his duty at Badhigaon Grama Panchayat of the Block. The Collector, Boudh, who is the Chief Executive Officer, DRDA, Boudh, directed the petitioner to “supervise the works executed through Boudh Block and DRDA in Boudhgarh area”. Again the Project Director, DRDA, as directed by the Collector, Boudh vide office order dated 11.11.2009, intimated the petitioner to work as part time Junior Engineer of Boudhgarh Notified Area Council (NAC). 1.1 While the petitioner was continuing as such, on 18.03.2012 the Deputy Superintendent of Police (Vigilance), Boudh Unit, Boudh lodged an FIR in the Vigilance Police Station, Berhampur alleging that the petitioner (Junior Engineer, Boudhgarh NAC) had misappropriated Rs.76,601/- during 2010-11 in execution of 2nd Daily Market inside Boudhgarh NAC area. Consequently, Berhampur Vigilance P.S. Case No.11 of 2012 was registered, which corresponds to Vigilance G.R. Case No.11 of 2012 on the file of Special Judge (Vigilance), Berhampur [which has been subsequently renumbered as G.R. Case No. 104 of 2013(v)/T.R. No.4 of 2014 pending before the learned Special Judge, Vigilance, Phulbani]. 1.2 The petitioner on 22.03.2012, wrote to the Collector, Boudh explaining the position of the case and requested to move the Vigilance Officers for proper investigation into the allegation, which was transmitted to the Superintendent of Police (Vigilance), Berhampur vide DRDA letter no. 920 dated 31.03.2012. But the same having not been responded to, the petitioner approached this Court seeking anticipatory bail vide BLAPL No. 24257 of 2012, which was granted by order dated 27.09.2012. As the request made by the petitioner was not responded to, he met the Inspector General (Vigilance) on 19.08.2013 and submitted his explanation praying for appropriate action. Further on 20.08.2013, the petitioner submitted a representation to the Collector, Boudh, who was the immediate controlling authority, seeking exemption from the liability of Rs.50,699/-, which was levelled against him as per the FIR lodged by the Deputy Superintendent of Police. Further on 20.08.2013, the petitioner submitted a representation to the Collector, Boudh, who was the immediate controlling authority, seeking exemption from the liability of Rs.50,699/-, which was levelled against him as per the FIR lodged by the Deputy Superintendent of Police. Subsequently on 29.08.2013, petitioner submitted another representation to the Inspector General (Vigilance) ventilating his grievance. Since no development took place, he filed WPCRL No. 1211 of 2013. 1.3 While entertaining the said writ application, this Court passed an order on 16.09.2013 to the following effect: “Learned counsel for both the parties are directed to take instruction as to who are the executive officers of Boudh N.A.C. during the relevant period. List this matter on 25th September, 2013. It is directed that no Final Form shall be submitted by the Vigilance Department till next date.” During continuance of the aforesaid interim order, the Vigilance Department in gross violation of the said order of this Court dated 16.09.2013 submitted the final form on 20.09.2013. Consequent thereupon, learned Special Judge, Vigilance, Phulbani had issued summons to the present petitioner. As a result, the petitioner filed CRLMC No. 2659 of 2016 seeking to quash the proceedings in exercise of power under Section 482, Cr.P.C. in view of the final form submitted in violation of order dated 16.09.2013 passed in WPCRL No. 1211 of 2013. Since both WPCRL No. 1211 of 2013 and CRLMC No. 2659 of 2016 have arisen from the selfsame cause of action, they were heard together and are being disposed of by this common judgment. 2. Mr. G. Mishra, learned counsel for the petitioner contended with vehemence that the petitioner had filed WPCRL No.1211 of 2013 seeking direction to opposite party no.5 to cause investigation into the matter as per the FIR lodged in Berhampur Vigilance P.S. Case No.11 of 2012 under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988, read with Sections 409/34 of the Indian Penal Code, which corresponds to G.R. Case No.11 of 2012 on the file of learned Special Judge, Vigilance, Berhampur and has been renumbered as G.R. Case No. 104 of 2013 (v) (T.R. No.4 of 2014) pending before the learned Special Judge, Vigilance, Phulbani. While entertaining the matter, this Court vide order dated 16.09.2013 passed interim order directing that final form shall not be submitted by the Vigilance Department till the next date and the said interim order was extended from time to time. More so, the order was passed in presence of learned counsel appearing for the Vigilance Department. While such interim order was in operation, Vigilance Department submitted final form on 20.09.2013. It is contended that the opposite parties have grossly violated the interim order passed by this Court on 16.09.2013 in WPCRL No.1211 of 2013, and as such any action taken subsequent to the interim order passed, is a nullity in the eye of law. More so, the authorities are also liable for contempt of Courts for violation of the interim order passed by this Court. To substantiate his contention, he has relied upon the judgment of the apex Court in Manohar Lal (dead) by LRs. V. Ugrasen (dead) by LRs., (2010) 11 SCC 557 . 3. Mr. D.K. Pani, learned Standing counsel for the Vigilance Department, on having received instructions, states that the order dated 16.09.2013 passed in WPCRL No. 1211 of 2013, by which this Court granted interim protection, had never been communicated to the department. Therefore, the final form has been submitted on 20.09.2013 being ignorant of the interim order passed by this Court. As such, there is no intention behind submission of the final form in violation of the interim order passed on 16.09.2013 by this Court. 4. Facts delineated above are not disputed by the parties. When the petitioner approached this Court by filing WPCRL No. 1211 of 2013 seeking for direction to cause investigation into the matter pursuant to the FIR registered as Berhampur Vigilance P.S. Case No. 11 of 2012, in the light of the representation made by him in Annexures-3 to 6, this Court, while entertaining such application, passed interim order on 16.09.2013 that no final form shall be submitted by the Vigilance Department till the next date. Needless to say that the order was passed in presence of the counsel appearing for both the parties, meaning thereby the counsel appearing for the petitioner, as well as the Vigilance Department and, more particularly this Court directed the counsel appearing for the opposite parties to take instructions. Needless to say that the order was passed in presence of the counsel appearing for both the parties, meaning thereby the counsel appearing for the petitioner, as well as the Vigilance Department and, more particularly this Court directed the counsel appearing for the opposite parties to take instructions. Once the order has been passed in presence of the counsel for the opposite parties, it is deemed that the same has been communicated to the opposite parties. The contention raised by the learned counsel appearing for the Vigilance Department, that since the interim order dated 16.09.2013 had not been communicated to the Vigilance Department the final form was submitted on 20.09.2013, is of no consequence, particularly when the interim order evidently was passed in presence of the learned counsel for the Vigilance Department. 5. In Mulraj v. Murti Raghunathji Maharaj, AIR 1967 SC 1386 , the apex Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal, and subsequent action would be a nullity. 6. In Surjit Singh v. Harbans Singh, (1995) 6 SCC 50 , the apex Court while dealing with the similar issue held that in defiance of the restraint order, the alienation/assignment was made. If the Court were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. 7. In All Bengal Excise Licensees’ Assn. v. Raghabendra Singh, (2007) 11 SCC 374 , the apex Court held that a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. 8. Taking into consideration the aforementioned judgments, the apex Court in Manohar Lal (dead) by LRs. (supra) has categorically held that it is evident that any order passed by any authority in spite of knowledge of interim order of the Court is of no consequence as it remains a nullity. 9. 8. Taking into consideration the aforementioned judgments, the apex Court in Manohar Lal (dead) by LRs. (supra) has categorically held that it is evident that any order passed by any authority in spite of knowledge of interim order of the Court is of no consequence as it remains a nullity. 9. Applying the above mentioned principles to the present context, any steps taken in contravention of the interim order dated 16.09.2013 passed by this Court would be a nullity. Meaning thereby, if the order has been passed in presence of the counsel appearing for the opposite parties, it is within the knowledge of the Vigilance Department itself and knowing fully well that such interim order was operating since the final form was submitted on 20.09.2013 in violation of the said order, the subsequent action would be a nullity. 10. In such view of the matter, this Court is of the considered opinion that any action taken subsequent to interim order dated 16.09.2013 passed by this Court, cannot sustain in the eye of law. Accordingly, the final form submitted on 20.03.2013 in Annexure-7 deserves to be quashed and accordingly the same is hereby quashed in exercise of power under Section 482, Cr.P.C.. Needless to say that the quashing of the final form dated 20.09.2013 does not preclude the authority concerned to proceed further pursuant to the FIR dated 11.01.2013 lodged against the petitioner in accordance with law taking into consideration the representations filed by the petitioner as Annexures-3 to 6 to WPCRL No. 1211 of 2013. 11. Accordingly, both the WPCRL and CRLMC are disposed of with the above observation and directions. Petitions disposed of.