JUDGMENT
I.M. Quddusi, J.
1. Heard Mr. J.K. Rath, Learned Counsel for the petitioner and Mr. P. Acharya, Learned Counsel for the opposite parties.
2. It appears that a show cause notice was issued against the petitioner on 19.1.2004 to the effect that while he was holding the post of Assistant Executive Engineer (Electrical, T.R.W. Sub-division, Choudwar during the period from 6.8.1982 to 14.9.1991, the Executive Engineer, Electrical Division, Cuttack and former OSEB had entrusted about 353 (sic.) numbers of various sizes of Transformers for over-hauling and repairing to M/s. Orissa Engineers and Erectors, Tomando, Bhubaneswar, which returned 424 numbers of Transformers after repair and failed to return rest 111 numbers of transformers after repair in spite of repeated request by the concemed Executive Engineer resulting which FIR was filed by the Executive Engineer, Electrical Stores Division, Cuttack before Khandagiri Police Station which was registered as Khandagiri P.S. Case No. 96 of 1995 under Section 409, IPC and during trial the petitioner was examined as P.W. 2 in G.R. Case No. 1633 of 1995 in the Court of the Additional Chief Judicial Magistrate, Bhubaneswar. During investigation the seized documents were kept in zima of the petitioner as he was in charge of the Executive Engineer at the relevant time. Thereafter, the petitioner was transferred to other posts. During trial the Superintending Engineer, Electrical Circle, Jeypore received a summon from the Court of the S.D.J.M., Bhubaneswar by which the petitioner was summoned to give evidence as a witness and the Superintending Engineer forwarded the same vide his letter dated 27.3.1999 to the Executive Engineer, Electrical Stores Division, Cuttack, which is reproduced as under:
Sir,
I have received a summon from S.D.J.M. Court, Bhubaneswar to attend the Coiwt on 13.4.99. A copy of the same.is enclosed herewith for your reference.
Please make it convenient to collect the connected documents in connection with the above said case and please be available on the said date in the Court. The details required in this connection may kindly be ascertained from the concerned Government Advocate of S.D.J.M. Court, Bhubaneswar, who is dealing with the case.
An early action in the matter is required.
Encl. : As above.
Yours faithfully,
Sd/-
Superintending Engineer,
Electrical Circle, Jeypore.
Memo No…/99
Copy submitted to the Managing Director, CESCO, Bhubaneswar for kind information. It is a departmental case and the matter relates to the department during the incumbency of the undersigned as Executive Éngineer, Elect. Stores Division, Cuttack. Since all the records are available in the Electrical Stores Division, Cuttack the Executive Engineer, Elec. Stores Division, Cuttack may kindly be advised to contact the Govt. Advocate so that the case can be presented in a proper manner before the Hon’ble Court.
Sd/-
Superintending Engineer,
Electrical Circle, Jeypore
Memo No…/99, dt…
Copy forwarded to the Superintending Engineer, Electrical Stores Circle, New Bidyut Bhawan, Grid Co. Bhubaneswar for information and necessary action. Suitable instructions may please be issued to Executive Engineer, Electrical Stores Division, Cuttack in the matter.
Sd/-
Superintending Engineer.
3. Thereafter summon was forwarded to the petitioner through office where he was posted at that time. Consequently he attended the Court and gave his evidence, but the seized documents-which were kept in Zima of the petitioner, were not produced in the Court by any one. Thereafter the Learned Addl. C.J.M., Bhubaneswar by his judgment and order dated 30.4.2003 passed in G.R. Case No. 1633 of 1995 acquitted the accused inter alia with the following remarks:
xxx During the course of investigation, the I.O. seized connected documents under Seizure list, Ext. 2 and released the same in zima of P.W. 2 xxx P.W. 1 has categorically stated that he has not handed over any transformers to O.E.E. for repairing. However, he stated that the deceased Md. Issuf was the owner of O.E.E. who had authorized his agents to receive transformers and the transformers were handed over by the S.D.O. of Stores. Without verifying the record, he could not name those S.D.Os. of different stores who had delivered the transformers to O.E.E. for repair. xxx He could not say the name of the S.D.Os. who delivered the transformers to O.E.E. for repair. xxx The Prosecution neglected to take steps to summon the concerned S.D.Os. who had delivered the transformers to O.E.E. to be examined in the Court to prove the factum of entrustment. Although it is mentioned in the FIR is that the transformers were handed over to the firm with due acknowledgment, no such acknowledgments are produced and proved by the prosecution. Admittedly the informant-D.W. 1 has not handed over the transformers to O.E.E. for repair. Without examination of S.D.Os. concerned, proof of indemnity bond, acknowledgment receipts and other documents, the Court cannot jump into irresistible conclusion that it was entrusted to the firm, O.E.E. for repair and overhauling during the period from 26.8.1982 to 14.9.1991. xxx The prosecution has not been able to prove that the transformers of O.S.E.B. were entrusted with them for repair. xxx the I.O., P.W. 4 has stated that he seized the connected documents under seizure list Ext. 2. P.Ws. 2 and 3 support the factum of seizure of said documents. Therefore, there is nothing to doubt the genuineness of factum of seizure. Moreover, P.W. 4 stated that after seizure of said documents, he released the same in zima of P.W. 2 and P.W. 2 does not disown the same P.W. 2 claims to have taken the seized documents in his zima under Ext. 3. But strangely enough neither the prosecution took any steps for production of said documents to prove the same in the Court, nor did P.W. 2 take any care to produce said documents in the Court. xxx The prosecution is guilty of suppression of material documents. The prosecution case could not be established and O.S.E.B. suffered from substantial financial loss. Due to non-proof of factum of entrustment by the prosecution, I am constrained to record an order of acquittal. xxx
4. The Chairman-cum-Managing Director, GRIDCO, Bhubaneswar issued Office order dated 4.4.2005 to the petitioner to submit his show cause in departmental proceeding 32 of 2004 for his gross negligence in duty in not producing the seized documents in the Court. Accordingly the petitioner has submitted his reply.
5. Now the competent authority has to take a decision in the matter. In the mean time the petitioner after attaining the age of superannuation has retired from service with effect from 31.3.2005. Mr. Rath, Learned Counsel for the petitioner inter alia has submitted that in the said show cause notice, it has been mentioned that the GRIDCO/O.S.E.B. lost the case and suffered huge financial loss because the case has not been proved in the Court. The witnesses on behalf of the prosecution (GRIDCO/O.S.E.B.) could not produce the relevant documents to show that M/s. Orissa Engineer and Erectors, Bhubaneswar had taken transformers from the O.S.E.B. and had not retumed the entire numbers of transformers although the documents were available. But the faet is that a Civil Suit bearing M.S. No. 207/95-III in the Court of the Civil Judge (Senior Division), Bhubaneswar for recovery of amount of Rs. 41.97 lakhs from the said firm is pending and in the criminal case it could not be said that on acquittal of the accused, there was any financial loss. The petitioner was called as a witness to testify the documents on behalf of the prosecution and it was the bounden duty of the Executive Engineer to whom instructions were given to ensure production of the documents as the petitioner was not posted there and the documents were not in his custody. All there-aspects have not been looked into by the enquiry officer in the Departmental Proceeding.
6. Since we are not considered the case on merit at this moment, we expect from the punishing authority to take all these points into consideration while taking a decision in the departmental proceeding initiated against the petitioner.
7. In view of the above-mentioned facts and circumstances, we are not inclined to interfere in the matter on merits at this stage. However, we direct the disciplinary/punishing authority to take a decision considering all the aspects of the matters mentioned above. Since the petitioner is now a retired person, steps should be taken to conclude the same as expeditiously as possible preferably within a period of one month from t-he date of receipt of the copy of this order.
9. (sic). It is needless to say that in case the petitioner feels aggrieved by the decision of the disciplinary authority (O.P. No. 1), it will be open for him to approach the appropriate available forum against the same.
10. (sic). The writ petition is disposed of with the above observations/directions.
All the Misc. Cases also stand disposed of accordingly.
Requisites for communication of the order to opposite party No. 1 shall be filed by the petitioner by Monday (15.5.2006).
N. Prusty, J.
11. I agree.
