ORDER

Heard learned counsel for the petitioner and the learned Addl. Standing Counsel for the Vigilance Department.

2.This order arises out of an application under Section 438 of the Code of Criminal Procedure. 1973. The petitioner is apprehending arrest for alleged commission of offences under Sections 13(2) read with 13(1)(c)(d) of the Prevention of Corruption Act hereinafter referred to as the “Act” for brevity and Sections 409 and 120(8) of the I.P.C. in Vigilance G.R. Case No. 02 of 2015 of the Court of Special Judge, Vigilance, Balasore.

3.The allegation against the petitioner is that he has been posted as Ayurvedic Medical Officer on 22.07.1981. He has worked in Phulbani, Kalahandi, Puri and Koraput districts. He joined at Belbahali Ayurvedic Dispensary of Keonjhar district on 06.07.2004 as Ayurvedic Medical Officer and subsequently joined in GAD, Malda, Keonjhar on 30.07.2010 on transfer.

4.Case of the prosecution is that during his posting at Phulbani, Kalahandi and Malda, he has not attended his duties and on various surprise inspections, the Attendance Registers were found to be without signature of the said petitioner, but he has continued to draw his salary and has managed to receive salary of Rs.17,38,214/-. Hence. F.I.R has been lodged against the petitioner and the Drawing and Disbursing Officers. who have passed his salary bill for payment.

5.Learned counsel for the petitioner. vehemently argues that an offence under Section 13 of the Act is not made out against the present petitioner. It is stated that if a person is posted in a Government post it is his right to get salary. It is also submitted by the learned counsel for the petitioner that due to enmity between him and one Dr. Prasanta Kumar Deo, this false case has been initiated, because the petitioner challenged promotion of said Dr. Prasanta Kumar Deo, Ayurvedic Doctor.

6.Learned Addl. Standing counsel for the Vigilance Department, however, submits that though some of the co-accused persons being the Drawing and Disbursing Officers of different Ayurvedic District Offices have been granted anticipatory bail, the case of the present petitioner stands in a different footing. It is stated that he is the direct beneficiary of the fraud committed by him.

7.Now the question arises, whether the offence has been made out against the present petitioner. It is no doubt true that if a person is posted in a Government job, a salary is affixed to it, but the Government servant is entitled to the salary if he works for that period. If he abstains from work, then either he should avail earned leave or half pay leave. Without attending duties or office, an employee cannot claim, as a right, to the salary that is attached to the post. It is also well settled that the financial benefit received by any employee is his personal responsibility. In other words, one cannot say that only because the Drawing and Disbursing Officers have sanctioned his financial entitlements, he shall be absolved from the charges and no offence can be made out against him.

8.In this backdrop, the statements of witnesses like Jayanta Kumar Satpathy, working as Junior CIerk-cum-Typist, District Ayurvedic Medical Office, Central Circle, Keonjhar, Paresh Kumar Das, Head Clerk of the said office and statement of Mr. H. Nayak the informant and Inspector of Vigilance, Keonjhar clearly reveals that without the working certificate, salaries of the petitioner have been drawn for several months. Thus. the allegation of the prosecution is prima facie correct. Offence under Sub-Section (1) of Section 13 of the Prevention of Corruption Act provides for the offence of a criminal misconduct, which reads as follows :-

“13.Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct :-

(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneratio