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AS THE PETITIONER HAS BEEN EXONERATED IN THE DEPARTMENTAL PROCEEDINGS, THE CRIMINAL CHARGES ALSO DESERVE TO BE SET ASIDE: ODISHA HIGH COURT

This particular decision is upheld by the High Court of Odisha through the division bench of Chief Justice Dr. S. Muralidhar in the case of Dr. Minaketan Pani v. State of Orissa Case No.: CRLMC No. 3407 of 2010.

FACTS

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.

JUDGEMENT

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. However, as far as this Court is concerned, it is not persuaded to adopt the above line of reasoning of the learned Single Judges of the said two High Courts of Kerala and J&K, for the simple reason that as explained by the Full Benches of the three High Courts, i.e., the High Court of Karnataka in Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd., (supra), the High Court of Gujarat in Gujarat Housing Board, Ahmedabad v. Nagajibhai Laxmanbhai (supra) and the Madhya Pradesh High Court in Jabalpur Bus Operators Association v. State of Madhya Pradesh (supra), 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 v. Deputy Superintendent of Police, EOW, CBI and, therefore, that would prevail. For all of the aforementioned reasons, 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 Radhey shyam 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.

JUDGEMENT BY NAISARGIKA MISHRA

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