STATE OF ORISSA Vs. AMULYA KUMAR CHAMPATIRAY

JUDGEMENT

(1.) The State of Orissa and its functionaries being aggrieved with the order dtd. 17/1/2013 passed by the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No. 384(C) of 2012 are before this Court by way of this writ petition, whereby and where under the order of dismissal of the sole opposite party has been quashed with a liberty to the Disciplinary Authority to initiate appropriate disciplinary proceeding against the applicant-sole opposite party and finalize the same as per law, rules and executive orders in vogue within a reasonable period.

(2.) The brief fact of the case is that the sole opposite party filed an original application before the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack being O.A.No. 384(C) of 2012 challenging the order passed by the Director General and Inspector General of Police, Odisha, Cuttack by which he has been dismissed from service in exercise of the powers conferred under Art. 311 (2)(b) of the Constitution of India. His dismissal of service was based on the allegation of inaction in the matter of dealing with the case of atrocity on an 18 years old girl of village Arjunagoda under Pipili Police Station. It has been alleged against the sole opposite party that while he was posted as Inspector in-charge of Pipili Police Station in the district of Puri, one Sri. Babuli Behera has submitted a written report to Sri Amulya Champatiray, the sole opposite party herein, mentioning that on 29/11/2011 at about 7 A.M. his daughter Kumari Babina Behera, aged 18 years had gone outside their house to attend to the call of nature. After some time, she was found lying naked in the field in an unconscious state struggling for her life, with marks on her throat. The local people had immediately shifted the girl to Pipili Government Hospital from where she was referred to Capital Hospital, Bhubaneswar and subsequently to S.C.B. Medical College & Hospital, Cuttack for treatment. The girl was in a state of comma. Babuli Behera had also complained that as he belongs to scheduled caste community the doctors are not paying adequate attention to his daughter. The allegation against the sole opposite party is that he even knowing the fact that the alleged commission of offence is a cognisable one that too against a scheduled caste girl, he neither did register the case nor made any station diary entry. He also did not make any formal enquiry/investigation into the incident, he failed to inform the senior officials about the occurrence and as such, there was severe public outcry due to the inaction of the police in taking legal action in the matter, which was reported widely in media. After abnormal delay, when there was severe adverse media report, the SDPO, Pipili visited the victim girl and met her father and finally on the report of Sri. Amulya Kumar Behera, son of Babuli Behera, the brother of the victim a case was registered vide Pipili P.S.Case No.10 dtd. 9/1/2012 under Sec. 341, 307, 376, 506/34, Penal Code read with Sec. 3(1) of the S.C. & S.T (P.A.) Act. The State Government has directed the Crime Branch to take up the investigation vide order passed in this regard on 10/1/201 The Superintendent of Police, Puri had also submitted an inquiry report on 13/1/2012 after visiting the crime spot and examining the mother of the victim and other witnesses. He also examined the sole opposite party and submitted a report that in spite of the inquiries, the sole opposite party did neither register a case and make any station diary entry nor take any legal action. Thereafter, the sole opposite party was put under suspension vide office order No.63/Exe dtd. 13/1/2012 for his gross negligence and dereliction in duty. The Crime Branch had started investigation of the case and arrested four accused persons and they have been remanded to the judicial custody. The Superintendent of Police, Puri had also submitted another report on 21.2012 which revealed that the complainant had gone to Pipili Police Station three times and requested the Inspector in-charge to take action, but however to no effect and as such, it has been treated to be gross negligence of duty and hence, the competent authority in exercise of powers conferred under Art. 311 (2)(b) of the Constitution of India read with the provision of Rule 828 and read with Appendix 49(12)(c) of the Orissa Police Manual has passed an order on 24/1/2012 dismissing the sole opposite party from service with immediate effect. The said order was challenged by the sole opposite party before the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack mainly on the ground that he has not been provided with any opportunity of being heard and by exercising the powers conferred under Art. 311 (2)(b) of the Constitution of India read with the provision of Rule 828 and Appendix 49(12)(c) of the Orissa Police Manual, has been dismissed from service with immediate effect, which is highly illegal, arbitrary and unreasonable for the reason that, the mandatory requirement as provided under the provisions of Art. 311 (2)(b) of the Constitution of India has not been followed, which requires that a reason has to be recorded in writing to the effect that it is not reasonably practicable to hold such enquiry. According to him, in the order dtd. 24/1/2012, no such reason has been assigned invoking the jurisdiction conferred under Art. 311(2)(b) of the Constitution of India and as such, the said order is absolutely illegal and is not sustainable in the eye of law. His further ground was that the provisions of Art. 311 (2)(b) of the Constitution of India have been exercised read with the provision of Rule 828 and read with Appendix 49(12)(c) of the Orissa Police Manual, which mandates that major punishment would not be passed until and unless a regular departmental proceeding as provided under the Public Enquiries Act, 1850 is initiated and as such, the order dtd. 24/1/2012 is without any application of mind. He further submits that the entire exercise has been initiated for imposing the capital punishment of dismissal from service merely on the ground of the complaint made by the father of the victim girl, namely, Babuli Behera, who has alleged that he had gone to the police station on 13/11/2011, but the sole opposite party being in charge of the Police Station has not entertained his complaint, but according to him, the same needs to be proved as to whether the said Babuli Behera had ever gone to the police station for instituting the F.I.R. and without getting this fact proved, the allegation of dereliction of duty has been inflicted upon him, which is highly illegal and unreasonable. The Orissa Administrative Tribunal after taking into consideration all these aspects of the matter has quashed the order of dismissal with a liberty to the disciplinary authority to initiate a fresh departmental proceeding and to conclude it within a reasonable period, which has been challenged by the State of Orissa, through its functionaries mainly on the ground that it is a fit case in which the power conferred under Art. 311 (2)(b) of the Constitution of India has been invoked.

(3.) It has been submitted by Mr. J.P. Patnaik, learned counsel representing the State of Orissa that it is due to the inaction on the part of the sole opposite party the faith of the people in police is sacking and as such, it is necessary for the higher officials to take action against him and that is the reason the requirement during the relevant time was to take immediate action so that the faith of the people in maintaining law and order vested upon the police administration be maintained and keeping this fact into consideration, the provisions as contained under Art. 311 (2)(b) of the Constitution of India has been invoked and hence, there is no illegality in the same. He submits that the victim belongs to Scheduled Caste category, the nature of allegation is very serious and if the police officer like the sole opposite party will be left scot-free, the entire faith of the people on the police administration will end. He further submits that the requirement as contained under Art. 311 (2)(b) of the Constitution of India has been followed as would be evident from the order dtd. 24/1/2012 wherein reason has been assigned for not going in detail enquiry as provided under the Public Enquires Act, 1850 and the discipline and appeal rule applicable to the sole opposite party. It has been asserted that the order passed by the learned Tribunal needs to be interfered with.