Honourable Exoneration In Departmental Proceedings Would Warrant Quashing Of Criminal Prosecution Arising From Same Set Of Facts: Orissa High Court

While quashing criminal charges against the petitioner, a Single Judge Bench of Chief Justice Dr. S. Muralidhar held,

"…in the facts and circumstances of the present case where on the same charges on which the Petitioner is facing criminal trial he has been honourably exonerated in the departmental proceedings, the Court adopts the reasoning of the decisions in Radheyshyam Kejriwal v. State of West Bengal (supra) and Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) and sets aside the impugned order dated 15th January 2009, passed by the Sub-Divisional Judicial Magistrate (S) Cuttack in G.R. Case No.1057 of 2007."

Factual Background:

One Bijay Shankar Das appeared in the Annual High School Certificate Examination for the year 2007, conducted by the Board of Secondary Education, Orissa (BSE) at the Government High School, Jagatsinghpur Centre. It was alleged that there had been a manipulation of the marks in the said examination in respect of the roll number of the said Sri Bijay Shankar Das and others at the valuation Centre of the BSE.

The result of the Annual High School Certificate Examination was published on 29th May 2007, in which Bijay Shankar Das was declared passed in the First Division. In the month of August 2007, one Dr. Debendra Chandra Mishra, Ex-President, BSE received an anonymous call about the manipulation and enhancement of the marks from 39 to 89 in Oriya subject and 50 to 80 in English Paper of the abovenamed candidate. The President then sought clarification from the Secretary and Controller of Examination, BSE. However, neither officer responded to the query.

Thereafter, a detailed investigation was undertaken; the above officers were examined and also the documents and materials relevant to the case were gathered from different sources. The scrutiny of the statements and the documents revealed that marks of Sri Bijay Shankar Das had been illegally manipulated and enhanced by the Controller of Examination and that this was within the knowledge of the present petitioner i.e., the then Secretary, BSE. Accordingly, upon completion of the investigation the Investigating Officer (IO) submitted a charge sheet against the petitioner and others for the aforementioned offences of which cognizance was taken by the S.D.J.M., Sadar Cuttack.

After the departmental proceedings, the petitioner was exonerated of the charges. He retired with all his back wages and regularization of his service. Hence, he approached the High Court to quash the cognizance order of the learned S.D.J.M., Sadar Cuttack as he has already been found innocent in departmental proceedings.

Contentions of the Petitioner:

Mr. Debi Prasad Dhal, Senior Advocate appearing for the petitioner, argued that the criminal proceedings against the petitioner cannot continue. Two decisions were cited by him in support of the proposition that honourable exoneration in the departmental proceedings would justify discontinuance of the criminal proceedings on the same charges. The first is Radheyshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581 and the second is Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI, (2020) 9 SCC 636.

Contentions of the Respondent:

Mr. Sailaza Nandan Das, Additional Standing Counsel (ASC) relied upon the decision of a Bench of three Judges of the Supreme Court in State (NCT of Delhi) v. Ajay Kumar Tyagi, (2012) 9 SCC 685, which according to him came to a contrary conclusion. Further, he raised a point that the decision in Ajay Kumar Tyagi (supra) was unanimous, whereas the decision in Radheyshyam Kejriwal (supra) was by a majority of 2:1. Hence, at best, the latter can be held to be a decision of only two judges.

Court's Findings:

The Court noted the conflict between the above decisions of Benches of the Supreme Court. It had granted time to counsel for the parties to examine the issue further. The matter was thereafter finally heard.

Mr. Dhal pointed out that several High Courts have taken the view that where there is conflict between judgments of the Supreme Court of the same Bench strength, then the later judgment would prevail. In particular, he referred three decisions of the Full Benches of three different High Courts to substantiate his stand.

The Court first took note of the ratio laid down in Radheyshyam Kejriwal v. State of West Bengal (supra) where it was held that in case of exoneration on merits, where allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.

Then it discussed the decision in State (NCT of Delhi) v. Ajay Kumar Tyagi (supra), which held that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. The High Court pointed out that this decision did not take note of the earlier decision in Radheyshyam Kejriwal v. State of West Bengal (supra). However, both decisions discussed the earliest of the decisions of the Supreme Court in P.S. Rajya v. State of Bihar, (1996) 9 SCC 1.

In P.S. Rajya (supra), the allegation against the delinquent employee in the departmental proceedings and the criminal case were one and the same i.e., possessing assets disproportionate to the known sources of income. The Supreme Court was of the view that the case could be brought under any of the categories of cases mentioned in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 for quashing of the proceedings. Accordingly, the decision of the High Court declining to quash the criminal case was set aside and the criminal proceedings were quashed.

In Ajay Kumar Tyagi (supra), the decision in P.S. Rajya (supra) was sought to be distinguished by stating that it does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed, as the decision to quash criminal proceedings was taken on the basis of peculiar facts and circumstances of that case.

However, the Court took strong objections to the findings of Ajay Kumar Tyagi (supra) by observing,

"Despite noting the aforementioned decisions, the decision in State (NCT of Delhi) v. Ajay Kumar Tyagi (supra) failed to take note of the coordinate Bench judgment in Radheyshyam Kejriwal v. State of West Bengal (supra). The latter Judgment was binding on the coordinate Bench and therefore the Judgment in State (NCT of Delhi) v. Ajay Kumar Tyagi should be considered to be 'per incuriam' as explained by the Supreme Court in State of Assam v. Ripa Sharma, AIR 2013 SC 3588 and Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752."

Finally, the Court considered the other three-judge Bench judgment in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra). It noted that this decision follows Radheyshyam Kejriwal (supra) but does not notice Ajay Kumar Tyagi (supra). It however took note of P.S. Rajya (supra).

The conclusion reached in Ashoo Surendranath Tewari (supra) is that the exoneration in departmental proceedings would result in the quashing of the criminal case on the same charges since it entailed a higher standard of proof. In other words, if on the lower standard of proof itself the charges were not made out, they obviously would not be made out on a higher standard of proof in a criminal case. The case was held to be covered by Clause (vii) in para 38 of Radheyshyam Kejriwal v. State of West Bengal (supra).

Consequently, the Court held that where there is a conflict between two decisions of the Supreme Court of same Bench strength, it is later of the decisions that would prevail. The last of the judgments of the coordinate Bench of the Supreme Court of India is the decision in Ashoo Surendranath Tewari (supra) and, therefore, that would prevail.

Further, it rejected the point raised by the ASC that Ajay Kumar Tyagi (supra) was a unanimous decision whereas in Radheshyam Kejriwal, there was a dissenting opinion and thus, the ratio laid down therein, at best, can be considered to be an opinion of two judges. The Court highlighted that in Shanti Fragrances v. Union of India, (2018) 11 SCC 305, the Apex Court held that the total strength of the Bench that decided the case is deemed to be the Bench strength of that decision regardless of dissenting opinions.

For all of the aforementioned reasons, the Court concluded that as the petitioner has been exonerated in the departmental proceedings, the criminal charges also deserve to be set aside. Accordingly, the writ petition was allowed.

Case Title: Dr. Minaketan Pani v. State of Orissa

Case No.: CRLMC No. 3407 of 2010

Judgment Dated: 20 May 2022

Coram: Chief Justice Dr. S. Muralidhar

Counsel for the Petitioner: Mr. Debi Prasad Dhal, Senior Advocate

Counsel for the Respondent: Mr. Sailaza Nandan Das, Additional Standing Counsel

Citation: 2022 LiveLaw (Ori) 81

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