By Our Correspondent
BHUBANESWAR: Lawyers and Activists again writes to Amit Shah seeking Independent Examination and Appropriate Departmental Vigilance action in respect of the conduct of Sanjeeb Panda, IPS, in light of the judicial findings recorded by the High Court of Orissa in W.P.(C) No. 18470 of 2018 and affirmed by the Supreme Court of India in Civil Appeal No. 6242 of 2021, and requesting due consideration of the same before his appointment, if any, as Director General of Police (DGP), Odisha.
Sudhir Charan Mohanty, senior Advocate Odisha High Court, Advocate and RTI activist Prakash Das and RTI Activist Srikant Pakal have jointly written to Union Minister. They have also written to Copy to the Secretary Department of Personnel & Training (DoPT), Secretary, Office of the Union Public Service Commission , Chief Secretary
Government of Odisha, Principal Secretary, Home Department for information and appropriate consideration, as deemed necessary.
Details of Letter reads like this :
Respected Sir,
We respectfully submit this Memorandum/Complaint before the Ministry of Home Affairs, Government of India, seeking an independent, impartial and legally appropriate examination of the conduct and role of Shri Sanjeeb Panda, IPS, in connection with the Preliminary Inquiry conducted by him against Shri Satish Kumar Ishwardas Gajbhiye, IPS, concerning the alleged non-disbursement of reward money during the latter’s tenure as Superintendent of Police, Malkangiri. The present representation is based primarily upon the facts, findings and observations recorded by the constitutional courts in the following proceedings:
- Judgment dated 08.12.2020 passed by the Hon’ble High Court of Orissa at Cuttack in W.P.(C) No. 18470 of 2018, Satish Kumar Ishwardas Gajbhiye @ Satish Kumar Gajbhiye v. Union of India & Others; and
- Order dated 06.10.2021 passed by the Hon’ble Supreme Court of India in Civil Appeal No. 6242 of 2021, State of Odisha & Another v. Satish Kumar Ishwardas Gajbhiye & Others, whereby the appeal preferred by the State of Odisha against the judgment of the High Court was dismissed, and the Hon’ble Supreme Court observed that the judgment of the High Court was “perfectly justified in law” and that the Memorandum of Charges and Statement of Imputation had rightly been quashed.
The present representation is therefore not founded merely upon private allegations or personal grievances. It seeks appropriate administrative, disciplinary and vigilance consideration in light of the findings and conclusions recorded by the constitutional courts concerning the Preliminary Inquiry and the circumstances surrounding it.
We respectfully submit that the issues raised herein may be examined objectively and in accordance with law, without prejudging the guilt or innocence of Shri Sanjeeb Panda, IPS.
- BACKGROUND OF THE MATTER
During 2007–08, Shri Satish Kumar Ishwardas Gajbhiye, IPS, was posted as Superintendent of Police, Malkangiri.
In connection with the arrest of a Maoist on 25.07.2007, an amount of approximately ₹3.55 lakh was remitted to the office of the Superintendent of Police. As recorded in the judicial proceedings, the said amount included approximately ₹1.55 lakh intended for six police personnel, while the remaining amount was intended for civilian informers/sources.
Subsequently, complaints were made by certain police personnel regarding the alleged non-receipt of the reward amount.
On the basis of such complaints, a Preliminary Inquiry was conducted by Shri Sanjeeb Panda, IPS, who was then posted as DIGP (Intelligence) and had earlier served as the Range DIG supervising Malkangiri District.
The Preliminary Inquiry Report was submitted on 19.05.2012.
Thereafter, on 07.11.2015, a Memorandum of Charges/Statement of Imputation was issued against Shri Gajbhiye.
The disciplinary proceedings were subsequently challenged before the Hon’ble High Court of Orissa.
- SERIOUS JUDICIAL OBSERVATIONS CONCERNING THE PRELIMINARY INQUIRY
The Hon’ble High Court of Orissa examined the circumstances in which the Preliminary Inquiry was conducted by Shri Sanjeeb Panda, IPS.
The Hon’ble Court specifically considered the fact that Shri Panda had, at the relevant point of time, served as the Range DIG supervising Malkangiri District, and that the subject matter of the inquiry related to transactions and events occurring during the relevant period.
While examining the circumstances surrounding the appointment and conduct of the Preliminary Inquiry, the Hon’ble High Court observed that the appointment of the Preliminary Inquiry Officer “seems to be motivated and smacks personal and professional bias” and referred to the fundamental legal principle of nemo judex in causa sua, namely, that no person should act as a judge in his own cause.
The Hon’ble High Court further observed that the Preliminary Inquiry was conducted unilaterally and that the petitioner was not called upon to remain present or afforded an opportunity to put forward his case.
These judicial observations raise serious questions concerning the independence, impartiality and procedural fairness of the Preliminary Inquiry and, therefore, warrant examination by the competent authority.
- VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE
The judicial record further demonstrates that the Preliminary Inquiry was conducted without providing Shri Gajbhiye an effective opportunity to explain his position.
The Hon’ble High Court specifically considered the absence of the principle of audi alteram partem, i.e., the requirement that a person likely to be affected by an adverse decision must be afforded a fair and reasonable opportunity of being heard.
The Hon’ble Court treated the failure to observe the principles of natural justice as a serious procedural defect affecting the legitimacy of the proceedings.
The said finding assumes particular significance because the Preliminary Inquiry Report was subsequently relied upon in initiating disciplinary proceedings against Shri Gajbhiye.
- FAILURE TO EXAMINE ALL RELEVANT MATERIAL WITNESSES/SOURCES
The material placed before the Hon’ble Court indicated that the Preliminary Inquiry examined police personnel who had complained or were otherwise connected with the alleged non-payment of reward money.
However, the civilian sources/informers connected with the reward arrangement were not examined.
The omission assumes significance because the controversy itself concerned the distribution of reward money between police personnel and civilian sources.
Accordingly, an independent examination of the complete Preliminary Inquiry record is necessary to ascertain whether the inquiry was comprehensive, balanced, objective and impartial, and whether all material witnesses and sources relevant to the subject matter were appropriately examined.
- DELAY IN SUBMISSION OF THE PRELIMINARY INQUIRY REPORT
The Preliminary Inquiry Officer had been directed to submit the report by 30.08.2011.
However, the Preliminary Inquiry Report was submitted only on 19.05.2012, approximately nine months after the stipulated date.
The Hon’ble High Court specifically noticed the delay and the absence of compliance with the requirement of obtaining an extension.
The said delay becomes relevant when considered cumulatively with the other judicial observations concerning the manner and circumstances in which the Preliminary Inquiry was conducted.
The competent authority may therefore examine whether the delay was properly explained, authorised or otherwise dealt with in accordance with the applicable departmental procedure.
- QUESTION OF JURISDICTION AND AUTHORITY
The Hon’ble High Court further examined the competence of the authority by whom the Preliminary Inquiry had been ordered.
The Court recorded a finding that the Preliminary Inquiry had been ordered by an authority who was not competent to direct such an inquiry in the circumstances of the case.
The Hon’ble High Court further held that the Preliminary Inquiry Report dated 19.05.2012 prepared by the DIGP (Intelligence) lacked jurisdiction and, consequently, legal sanctity.
This is a matter of considerable importance because the said Preliminary Inquiry Report subsequently formed the basis for initiating disciplinary proceedings against Shri Gajbhiye.
An independent examination is therefore warranted to determine whether the conduct and role of the concerned officers, including Shri Sanjeeb Panda, IPS, require consideration under the applicable service, disciplinary and vigilance framework.
- AFFIRMATION BY THE HON’BLE SUPREME COURT OF INDIA
The State of Odisha challenged the judgment of the Hon’ble High Court of Orissa before the Hon’ble Supreme Court of India.
The matter was decided by the Hon’ble Supreme Court in Civil Appeal No. 6242 of 2021 by order dated 06.10.2021.
The Hon’ble Supreme Court dismissed the appeal preferred by the State of Odisha and observed that the judgment of the Hon’ble High Court was “perfectly justified in law” and that the Memorandum of Charges and Statement of Imputation had rightly been quashed.
The Hon’ble Supreme Court also considered the validity of the Preliminary Inquiry and the question as to whether the charge memorandum disclosed a predetermined conclusion regarding guilt.
The Hon’ble Supreme Court emphasised the requirement that authorities exercising quasi-judicial functions must maintain an open and unbiased mind and reiterated the fundamental principle that justice must not only be done but must also “eminently appear to be done.”
Therefore, the judgment of the Hon’ble High Court was not merely left undisturbed on a technical ground. The Hon’ble Supreme Court considered the legal issues arising from the matter and dismissed the State’s appeal.
The aforesaid judicial findings merit consideration by the competent authority from the perspective of service conduct, institutional integrity, procedural fairness and administrative propriety.
- IMPORTANCE OF THE MATTER FOR IPS SERVICE AND PUBLIC ADMINISTRATION
The matter concerns the conduct of an IPS officer in the course of an official Preliminary Inquiry against another IPS officer.
The judicial findings raise issues relating to:
- impartiality and institutional fairness;
- apparent conflict of role and potential bias in conducting an inquiry;
- jurisdiction and competence of the authority ordering a Preliminary Inquiry;
- observance of the principles of natural justice;
- fair and balanced collection and assessment of evidence;
- examination of relevant witnesses and sources;
- delay in submission of an official inquiry report;
- propriety of an inquiry conducted by an officer having an official supervisory connection with the subject matter; and
- the consequences of relying upon such an inquiry for initiating subsequent disciplinary proceedings.
These issues have a direct bearing upon public confidence in the fairness, independence and integrity of disciplinary mechanisms within the Indian Police Service.
- NEED FOR INDEPENDENT ADMINISTRATIVE/VIGILANCE EXAMINATION
The complainants respectfully submit that the judicial findings should not be treated merely as a private service dispute between two individual officers.
The findings concern the manner in which an IPS officer allegedly exercised official authority while conducting an official Preliminary Inquiry, and the subsequent consequences arising from that inquiry.
Therefore, the competent authority may examine whether the conduct and circumstances recorded in the judicial proceedings disclose any matter warranting examination under the applicable All India Services (Conduct) Rules, 1968, disciplinary rules, vigilance provisions, departmental instructions or any other applicable service regulations.
The present complaint does not seek to prejudge the guilt or innocence of Shri Sanjeeb Panda, IPS.
Rather, it seeks an independent, fair and legally compliant administrative examination of the conduct and circumstances specifically recorded and commented upon by the Hon’ble High Court of Orissa and considered by the Hon’ble Supreme Court of India.
- GROUNDS WARRANTING CONSIDERATION
The following circumstances, taken cumulatively, warrant examination by the competent authority:
- Apparent Conflict/Bias
The Preliminary Inquiry Officer had previously served as the Range DIG supervising Malkangiri District during the relevant period. This circumstance was specifically considered by the Hon’ble High Court while examining the issue of personal and professional bias.
- Failure to Observe Natural Justice
The affected officer was not provided an effective opportunity to present his case during the Preliminary Inquiry, as noticed by the Hon’ble High Court.
- Unilateral Nature of the Inquiry
The inquiry proceeded without calling upon the concerned officer to participate and without affording him an adequate opportunity to explain the material relied upon against him.
- Incomplete Examination of Relevant Persons
The civilian informers/sources connected with the reward arrangement were not examined, despite the relevance of their evidence to the alleged distribution of reward money.
- Delay in Submission of Report
The Preliminary Inquiry Report was submitted on 19.05.2012, although the stipulated date for submission was 30.08.2011.
- Jurisdictional Defect
The Hon’ble High Court held that the Preliminary Inquiry had been ordered by an authority not competent to do so and that the Preliminary Inquiry Report lacked legal sanctity.
- Consequential Disciplinary Proceedings
The Preliminary Inquiry Report was subsequently relied upon for initiating disciplinary proceedings against Shri Gajbhiye. Those proceedings were ultimately quashed by the Hon’ble High Court, whose judgment was subsequently affirmed by the Hon’ble Supreme Court.
In view of the above circumstances, an independent examination by the competent authority is necessary to determine whether any administrative, disciplinary or vigilance action is warranted in accordance with law.
- CONCERN REGARDING THE REPORTED PROPOSAL/CONSIDERATION OF SHRI SANJEEB PANDA, IPS, FOR APPOINTMENT AS DGP, ODISHA
At present, Shri Sanjeeb Panda, IPS, is reportedly being considered for appointment as the Director General of Police (DGP) of Odisha.
In view of the judicial findings referred to hereinabove and the other issues and concerns raised in this representation, we respectfully submit that his candidature for appointment to such a sensitive and high public office merits careful, objective, independent and legally appropriate consideration by the competent authority.
We therefore respectfully request that, until the issues and concerns raised against Shri Sanjeeb Panda, IPS, have been appropriately examined and independently verified, his appointment as Director General of Police, Odisha, may kindly not be considered.
Instead, any other suitable, deserving and duly qualified officer may be considered for the post in accordance with law, applicable rules and the prescribed selection criteria.
We submit that such an approach would be in the larger public interest and would help strengthen public confidence in the neutrality, fairness, professionalism and integrity of the police administration in the State.
We are particularly concerned that the office of the Director General of Police, being the highest professional position in the State Police, carries immense responsibility for the maintenance of law and order, impartial enforcement of law, protection of citizens’ rights and preservation of public confidence in the police institution.
We are not asserting as an established fact that the appointment of Shri Sanjeeb Panda, IPS, would necessarily result in deterioration of the law-and-order situation in Odisha. However, in view of the judicial observations and concerns set out herein, we respectfully submit that such matters deserve careful consideration before entrusting an officer with the highest professional responsibility in the State Police.
At the same time, we do not present the allegations or concerns referred to in this representation as established facts, nor do we seek to prejudge the conduct, guilt or innocence of Shri Sanjeeb Panda, IPS.
Our request is confined to seeking an independent, impartial and professional examination of the matters raised herein so that the truth may be objectively ascertained and an informed decision may be taken by the competent authority.
Based on the judgments, official documents, complaints, public statements and other materials available with us, we respectfully request that, if considered appropriate, the matters raised in this representation may be verified through the competent authorities of the State or Central Government, Vigilance authorities, intelligence agencies, or any other independent and legally competent investigative authority, as may be deemed appropriate in accordance with law.
Odisha is presently undergoing a new phase of governance. In these circumstances, maintaining the political neutrality, professional independence and institutional integrity of the police force, together with public confidence in its functioning, assumes paramount importance.
Appointment to the sensitive office of the Director General of Police, Odisha, should therefore be assessed not merely on the basis of seniority, but also with due regard to integrity, impartiality, professional competence, leadership ability, institutional credibility and public confidence, subject always to the applicable statutory and administrative framework.
We therefore most respectfully request that the candidature of Shri Sanjeeb Panda, IPS, for appointment as Director General of Police, Odisha, may be considered only after the judicial findings, allegations and concerns raised in this representation have been appropriately examined and, wherever necessary, independently and impartially verified by the competent authority.
At the same time, we respectfully request that, while taking any decision concerning the appointment, the Government may accord the highest priority to the interests of the State, effective maintenance of law and order, professional independence of the Police Department, institutional integrity and the credibility and confidence of the people of Odisha in the police administration.
- PRAYER / REQUEST FOR APPROPRIATE ACTION
In view of the facts, circumstances, judicial findings and concerns stated hereinabove, we most respectfully pray that the Hon’ble Ministry of Home Affairs and the competent authority may kindly be pleased to:
(i) Take this Memorandum/Complaint on record and place the same before the competent authority dealing with IPS service, disciplinary, vigilance and cadre matters;
(ii) Call for, secure and examine the complete original records relating to the Preliminary Inquiry conducted by Shri Sanjeeb Panda, IPS, including the order by which he was appointed/authorised to conduct the inquiry, the terms of reference, relevant file notings, statements recorded, documents relied upon, the Preliminary Inquiry Report dated 19.05.2012 and all connected correspondence;
(iii) Examine, in the light of the judgment of the Hon’ble High Court of Orissa and the order of the Hon’ble Supreme Court of India, whether the conduct and role of Shri Sanjeeb Panda, IPS, as reflected from the judicial record and official records, warrant initiation of any departmental, disciplinary or vigilance proceedings under the applicable All India Services Rules or other applicable provisions;
(iv) Independently examine the issues concerning apparent bias, conflict of role, jurisdiction, natural justice, unilateral conduct of the inquiry, non-examination of relevant sources/witnesses and delay in submission of the Preliminary Inquiry Report;
(v) Examine whether any violation of the All India Services (Conduct) Rules, 1968, applicable service instructions, departmental procedures, vigilance norms or standards of professional conduct applicable to an IPS officer is disclosed;
(vi) If the competent authority finds sufficient prima facie material, initiate appropriate proceedings in accordance with law, after following all applicable procedural safeguards and principles of natural justice;
(vii) Ensure that any such examination, verification, preliminary inquiry or investigation is entrusted to an authority/officer having no conflict of interest with the subject matter;
(viii) Preserve and secure all original records connected with the Preliminary Inquiry and subsequent disciplinary proceedings, including electronic and physical records wherever applicable, so that no relevant official record is lost, altered, tampered with or destroyed;
(ix) In view of the reported consideration of Shri Sanjeeb Panda, IPS, for appointment as Director General of Police, Odisha, take the judicial findings and concerns raised in this representation into account before any final decision is taken regarding his candidature;
(x) Pending appropriate examination of the matters raised herein, refrain from treating the appointment of Shri Sanjeeb Panda, IPS, as DGP, Odisha, as a matter requiring consideration without first taking into account the judicial findings and the institutional concerns specifically highlighted in this representation;
(xi) Consider, in accordance with the applicable law and selection framework, another suitable, deserving and duly qualified officer for the office of Director General of Police, Odisha, if the competent authority considers such course appropriate in the larger public interest;
(xii) Where considered necessary, cause the allegations and concerns raised herein to be independently verified by an appropriate competent agency, including the State/Central Vigilance machinery or any other legally competent investigative authority, without prejudging the outcome;
(xiii) Ensure that any decision concerning the appointment to the office of DGP, Odisha, gives due consideration to integrity, impartiality, professional competence, leadership, institutional credibility, public confidence and the larger interests of the State, in addition to seniority and other applicable criteria;
(xiv) Communicate to the complainants, subject to applicable law and confidentiality requirements, a reasoned decision/action-taken communication regarding the representation and the steps taken by the competent authority;
(xv) Pass such other or further order, direction or action as may be deemed fit, proper and necessary in the interests of justice, institutional integrity, administrative fairness, accountability, effective policing and public confidence in the Indian Police Service.
We respectfully submit that the above requests are made in good faith and in the larger public interest, without seeking to prejudge the guilt or innocence of any individual.
The complainants remain willing to furnish any further documents, records or material in their possession that may assist the competent authority in conducting an objective examination of the issues raised herein.
- DOCUMENTS RELIED UPON
Annexure–1: copy of the judgment dated 08.12.2020 passed by the Hon’ble High Court of Orissa in W.P.(C) No. 18470 of 2018, Satish Kumar Ishwardas Gajbhiye @ Satish Kumar Gajbhiye v. Union of India & Others.
Annexure–2: Copy of the order dated 06.10.2021 passed by the Hon’ble Supreme Court of India in Civil Appeal No. 6242 of 2021, State of Odisha & Anr. v. Satish Kumar Ishwardas Gajbhiye & Ors.
Annexure–3: Copies of such other documents, complaints, public statements and supporting materials as may be relied upon by the complainants and furnished before the competent authority, wherever applicable.
- CONCLUSION
In view of the foregoing facts and circumstances, we respectfully submit that the issues raised herein deserve independent, impartial and legally compliant consideration at the appropriate level.
The purpose of this representation is not to secure any predetermined conclusion against Shri Sanjeeb Panda, IPS, but to request that the judicial findings and other concerns placed before the Government be examined by the competent authority and that any decision regarding disciplinary/vigilance action or appointment to a sensitive public office be taken only after due consideration of all relevant facts and applicable law.
‘We trust that the Hon’ble Ministry of Home Affairs will consider this representation in the larger public interest and take such action as may be deemed appropriate in accordance with law,” they added.
