HEMANTA KUMAR BOSE Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution against the order of the Government of Orissa in the Revenue Department No. 603 Con. , dated 1 October 1953, dismissing the petitioner from service with effect from 20 August 1953.

(2.) THE petitioner, after serving in various subordinate capacities, was subsequently confirmed as superintendent of excise with effect from 14 April 1945. During the year 1949 when he was working as superintendent of excise in Dhenkanal district, there were some allegations of corruption against him which were investigated confidentially by the then Additional District Magistrate of Dhenkanal Sri S. N. Misra. He was placed under suspension on 19 August 1949 and the preliminary investigation was continued under Government orders by the subsequent Additional District Magistrate of Dhonkanal, Sri S. S. Patro. During that investigation, however, the petitioner was permitted to be present while the witnesses were being examined and he was also given an opportunity to cross-examine some of them. Sri Patro's investigation was completed in due course and submitted to Government who on the basis of the same framed three charges against the petitioner on 17 August 1950 (annexure F ). The petitioner was called upon to answer the charges and Sri R. C. Ratho, the then Commissioner of Excise, was directed to hold a regular departmental enquiry under rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The third charge (with which alone we are concerned) related to the payment from April 1949 to August 1949 of various, sums of money as illegal gratification to the petitioner, by one Sheikh Khefayatullah, agent of one Mohammed Yusuf, who was a joint renter of a liquor shop in Dhenkanal town. It appears that during the preliminary investigation by Sri S. S. Patro, the said Khefayatullah spoke about the actual payment by him of the various sums noted in the charge to the petitioner as illegal gratification and also produced certain entries in the liquor shop account books to corroborate his statement about those payments. Along with a copy of the charges the Government enclosed a list of documents and witnesses by whom the charges were to be proved against the petitioner, and in that list it was clearly stated that so far as charge 3 was concerned Khefayatullah and one Baidyanath Das, excise peon, would be examined as witnesses against the petitioner.

(3.) IN the departmental enquiry before Sri R. C. Ratho, the excise peon Baidyanath Das turned hostile and completely resiled from his previous statement. Similarly, Khefayatullah denied having himself made. any payments to the petitioner as illegal gratification. When called upon to explain the entries in his account books showing payment of various sums of money to the "petitioner, he stated that he made these entries on the basis of information supplied to him by some other persons who were not examined as witnesses, either in the departmental enquiry or even in the preliminary investigation prior to that enquiry, The only payment about which Khefayatullah claimed personal knowledge was the payment of a sum of Rs. 26 as stated by him, to one Sharat Babu (P. W. 2) who, however, denied having received any such payment. The Commissioner of Excise, Sri R. C. Ratho, therefore, observed in his report dated 9 June 1951 (annexure J) that this charge was not proved. The only evidence to support the charge was that afforded by the uncorroborated entries in the shop account books maintained by Khefayatullah which undoubtedly show that the sums were paid to the petitioner; but when Khefayatullah denied any personal knowledge of the payment and stated that he made the entries on the basis of information supplied to him by some other person (who was not examined), the enquiring officer rightly held that on the basis of such uncorroborated entries it would not be proper to hold that the charge was established. On receipt of the report, Government consulted Mr. N. Senapati who was then President, Board of Revenue, and who subsequently became ex officio Secretary to Government in the Revenue Department. Mr. Senapati as Secretary to Government, wrote out a lengthy order dated 10 November 1951 (annexure I), in which he scrutinized the entire evidence collected by Sri R. C. Ratho during the departmental enquiry, but in disagreement with him held that charge 3 was proved. In coming to this conclusion, he relied mainly on the statement of Sheikh Khefayatullah during the preliminary investigation by Sri S. S. Patro, Additional District Magistrate, Dhenkanal, in which he had categorically asserted that the sums noted in the account books were paid by him to the petitioner. Mr. Senapati observed that Khefayatullah, in the subsequent departmental enquiry before Sri Ratho, had undoubtedly gone back on his previous statement, but that his earlier statement should be preferred to his subsequent one, especially when the account book entries corroborated the earlier statement. He also discussed certain other probabilities of the case, and held that charge 3 was proved. This order of Mr. Senapati, dated 10 November 1951, was signed by him as Secretary to Government in the Revenue Department and it may therefore be taken as the decision of the Government in respect of this charge. In fact, at the end of that order it is stated. The only proper punishment for receiving illegal gratification is dismissal from Government service. Government accordingly propose to inflict this punishment on Sri Bose. Sri Bosa is hereby directed to show cause, within one month from the date of receipt of this order, why this punishment should not be inflicted on him. This notice was issued in pursuance of Article 311 (2) of the Constitution. The subsequent cause shown by Sri Bose was considered unsatisfactory, and after consulting the Public Service Commission, Government passed orders on 1 October 1953 to the effect that the petitioner was guilty of charge 3 and that he should be dismissed from service with effect from 20 August 1953.