STATE OF ODISHA Vs. SATISH KUMAR ISHWARDAS GAJBHIYE

JUDGEMENT

(1.) Leave granted.

(2.) This appeal has been filed against the judgment of the High Court of Orissa at Cuttack whereby the Writ Petition registered as W.P. (C) No.18470 of 2018 filed by the respondent no. 1 has been allowed and the disciplinary proceedings initiated against him have been quashed. The respondent no. 1 is an IPS officer. The incident for which he was subjected to disciplinary proceedings occurred in the year 2008, when he was posted as Superintendent of Police, Malkangiri, in the State of Odisha. Allegation against him was over disbursement of a sum of Rs.3,55,000.00 credited in the account of the Superintendent of Police as reward amount. The said sum was to be paid to one Hawaldar and five Constables, (amounting to Rs.1,55,000.00 in total) and Rs.2,00,000.00 to two civilian informers for being involved in arrest of a hardcore militant. Complaint was made by three constables against him that they had not received the reward money. The complaint regarding the incident of June, 2008 was filed by the constables through three separate identical worded complaints after three years in July, 2011. Based on the said complaints, the Director-cum-Additional DG of Police (Intelligence), Odisha directed a preliminary inquiry to be held in the matter and appointed Shri Sanjeeb Panda, IPS DIG of Police (Intelligence), Odisha to conduct the inquiry. Admittedly, inquiry was conducted without any notice to respondent no. 1 and the inquiry report was submitted on 19/5/2012. Pursuant thereto, after more than three years, on 7/11/2015, a Memorandum as well as Article of Charges and a Statement of Imputation against the respondent no. 1 were issued by the Principal Secretary to the Government of Odisha. The respondent no. 1 challenged the issuance of the charge-sheet by way of filing an Original Application before the Central Administrative Tribunal. That application was disposed of vide judgment delivered on 22/12/2015 holding the same to be pre-mature and not maintainable. However, liberty was granted to respondent no. 1 to file his response to the Memorandum. Thereafter, respondent no. 1 filed a detailed representation along with preliminary objections to the Principal Secretary, Department of Home, Government of Odisha on 4/1/2016. Such representation was rejected on 6/2/2016. Thereafter, respondent no. 1 challenged legality of the Memorandum of Charges dtd. 7/11/2015 by way of filing fresh Original Application before the Central Administrative Tribunal, which was dismissed on 10/8/2018. The respondent no. 1 filed a Writ Petition No. 18470 of 2018 before the High Court of Odisha, assailing the dismissal order. This writ petition has been allowed vide judgment delivered on 8/12/2020. Aggrieved by the said judgment, the State of Odisha has filed this appeal by way of special leave petition.

(3.) Shri Gaurav Khanna, learned counsel for the appellant/State has submitted that the High Court has erred in holding that the appellant did not have the power to conduct preliminary inquiry before issuance of the Memorandum of Charges, in as much as it was the inherent power of the State to inquire into the matter before the charge sheet was issued and in the process, preliminary inquiry was directed to be held, in which the respondent no. 1 was found to be guilty and, thus, the Memorandum of Charges was issued against respondent no. 1. It is submitted that the Memorandum of Charges was duly approved by the Chief Minister, who was also holding the charge of Home Ministry, and, thus, the finding recorded by the High Court that the charges were issued without the approval of the Disciplinary Authority is factually incorrect. It has been the case of the charged officer (respondent no. 1) that the alleged approval granted by the Chief Minister was neither on record before the Central Administrative Tribunal nor before the High Court and the same has been placed as additional document before this Court, with the explanation that no counter affidavit in para wise manner was filed by the appellant to the Writ Petition in the High Court. It is, however, admitted that two affidavits were filed before the High Court, which were not in the form of para wise reply. It was then contended that the High Court has erred in holding that the amount of Rs.3,55,000.00 was towards Secret Service Fund, and thus the respondent no. 1 was not required to furnish the receipts or disclose the names of the civilian recipients. It has been submitted by the learned counsel for the appellant that as per the rules, respondent no. 1 was required to furnish the receipts of the payments made, which has not been done, and thus, the preliminary inquiry against respondent no. 1 was fully justified. It is, thus, contended that the impugned judgment passed by the High Court deserves to be set aside and the disciplinary proceedings against respondent no. 1 may be permitted to go on.