CHITTARANJAN CHOUDHURY Vs. STATE OF ODISHA AND ORS.

JUDGEMENT

(1.) THE Petitioner in this Writ Petition seeks to quash the notification dated 25.04.2011 of the Home (Special Section) Department, which was published on 02.05.2011 in the Orissa Extraordinary Gazette under Annexure -1. The case of the Petitioner, as averred in the Writ Petition, is that he entered into government service as Junior Engineer on 13.09.1965 in Irrigation Department. He was promoted to the rank of Asst. Engineer in 1976, & then to the rank of Asst. Executive Engineer in 1993. On 06.09.1995, he was posted as Executive Engineer, Minor Irrigation Division - II, Berhampur. While continuing in the said post his house was searched on 19.04.1996 by the Vigilance Department. During search, it is alleged, the Petitioner being a public servant was found in possession of assets disproportionate to his known sources of income. As a result, alleging commission of offence under Section 13(2) read with Section 13(1) of the Prevention of Corruption Act, 1988 (for short "the P.C. Act") the Vigilance Department on 06.05.1996 lodged an FIR, which was registered as Berhampur Vigilance P.S. Case No. 25 of 1996. On conclusion of the investigation, the Vigilance Department placed charge sheet against the Petitioner & the Learned Special Judge (Vigilance), Berhampur took cognizance & framed charge under Section 13(2) read with Section 13(1)(e) of the P.C. Act. As the matter stood thus, the Government of Odisha in the Home Department in exercise of the powers conferred by sub -section (1) of Section 5 of Special Courts Act, 2006 (for short "the Act") published Annexure -1 declaring that the Petitioner should be tried by the Special Court established under Sub -Section (1) of Section 3 of the Act. As a consequence, the case of the Petitioner stood transferred to the Court of the Learned Special Judge, Special Court, Bhubaneswar & renumbered as T.R. Case No. 8 of 2012. During pendency of the said T.R. case, the State filed an application under Section 13(1) of the Act before the Authorized Officer, Special Court, Bhubaneswar for confiscation of the assets of the Petitioner, his wife & son. The Authorized Officer registered the said application as Confiscation Case No. 17 of 2012 & issued notice to show cause under Annexure -3 series. Therefore, the Petitioner has filed this writ application to quash the declaration/notification under Annexure -1 & its consequential proceedings as unconstitutional.

(2.) LEARNED Counsel for the Petitioner submitted that during the period from 13.09.1965 to 19.04.1996, which had been taken by the prosecution as the check period or period of offence, the Petitioner was not holding any "high public office" or any post belonging to Group -A service in the State of Odisha, as defined in Rule 2(e) of the Orissa Special Courts Rules, 2007 (for short "the Rules"). During the aforesaid check period all the civil posts under the Government of Odisha were classified into (a) State Civil Posts, Class -I, (b) State Civil Posts, Class -II & (c) State Civil Posts, Class -III under the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 & such classification was in existence till 2000, when by virtue of amendment to the said Rules such classification was converted to (i) State Civil Services Group -A, (ii) State Civil Services Group -B & (iii) State Civil Services Group -C. So, according to him, since the period of offence ended on 19.04.1996 & at the relevant time the Petitioner was not holding any Group - A post under the State Government & as such he was not holding the "high public office", for which the Petitioner could not be brought within the ambit of the Act. Furthermore, the classification of posts into Group -A, Group -B, Group -C & Group -D, as made either by resolution No. 21317 -SC -6 -43/95 - Gen. dated 22.09.1995 or by resolution No. 17655 -SC -6 -15/99 -Gen. dated 07.06.1999 (Annexure -4) of the Government of Odisha in General Administration Department could not be taken into consideration, as no -gazette notification was made by the concerned administrative departments amending the relevant Acts and/or Rules nor was the post held by the Petitioner identified to be belonging to Group -A category. Secondly, it was contended that in order to attract Section 5(1) of the Act, a person should have committed the offences while holding "high public office". According to the Counsel for the Petitioner, the Petitioner never held "high public office" from 13.09.1965 to 19.04.1996, therefore, the declaration under Section 5(1) was bad in law. Thirdly, he contended that the Act is void for being retrospective in nature vis   -vis Section 6 of the Act. Therefore, the impugned notification/declaration under Anenxure -1 as well as consequent initiation of confiscation proceeding against the Petitioner was bad in law & liable to be set aside. Mr. Das, Learned Standing Counsel for the Vigilance Department submitted that Orissa Special Courts Rules, 2007 defined person holding "high public office" under Rule 2(e) which included a public servant falling within the meaning of Clause -c of Section -2 of the PC. Act or under Section 21 of the Indian Penal Code, 1860 & belonging to Group -A service of the Central or the State Government or officers of equivalent rank in any organization specified in the explanation below Clause -B of Section -2 of the said Act. The statement of the Petitioner, that during the check period he was not holding "high public office" as per the Act, was misconceived for the following reasons. The government resolution No. 17655 -SC -6 -15/99 -Gen. dated 07.06.1999 had classified all the posts in the government offices into four groups wherein Group -A was classified as the post in the pay scale, the maximum of which was not less than Rs. 13,500/ -, as evident from Annexure -B attached to the counter affidavit. Annexure -A to the counter affidavit, which was the communication made from the office of the Superintending Engineer, Southern Irrigation Circle, Berhampur, revealed that as per ORSP Rules, 1996 the scale of pay of Executive Engineer with effect from 01.01.1996 was Rs. 9350 -325 -14550/ -. The Petitioner admitted that he was promoted to the post of Executive Engineer on 06.09.1995 & the check period was in between 13.09.1965 & 19.04.1996. The Petitioner was allowed the benefit of pay scale of Rs. 9350 -14550/ - w.e.f. 01.01.1996. He also relied on the Orissa Civil Services (Classification, Control & Appeal) Rules. 1962 to contend that Class -I & Group -A posts are one & the same. Thus, he submitted that during the check period, the Petitioner had held Group -A post. So, during the check period the Petitioner had held "high public office". Further, he submitted that a plain reading of Section 5(1) of the Act made it clear that it was nowhere the requirement of law that in order to attract the provision of Section 5(1), a high public official should have committed the offence, while holding the "high public office" or a Group -A post. It would be enough if the person had committed the offence & held "high public office". Thirdly, Mr. Das submitted that the issue of retrospective application of the Act did not arise as because the Petitioner was facing trial before the Learned Special Judge, Vigilance & during pendency of the trial the Act came into force. So, all the cases including the case of the Petitioner pending in the Special Judge for commission of selfsame offence got transferred to the Special Courts as per Section 6(2) of the Act. So far as the offence & punishment were concerned, those were still under the same P.C. Act. But the Act had adopted a new procedure to conclude the proceedings expeditiously & to confiscate the property illegally acquired by means of the above offence. As such, the impugned notification/declaration (Annexure 1) issued by the State Government so also the initiation of confiscation proceeding & issuance of show cause notices held good & there was no arbitrariness & illegality in the said notification & the order.

(3.) THE questions that now fall for consideration, in the face of the above rival submissions urged on behalf of the parties, are that whether during the check period the Petitioner held a Group -A post & as such can the Petitioner be treated to be holding "high public office"? Secondly, whether in order to attract Section 5(1), a holder of "high public office" is required to hold "high public office" for the entire check period? Lastly, whether the Act is void because of retrospective operation of Section 6 of the Act?