Ferdinand Kispotta vs The State Of Jharkhand
2021 Latest Caselaw 319 Jhar

                                            1                 W.P.(S) No. 3976 of 2019




             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 3976 of 2019

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Ferdinand Kispotta, aged about 64 years, son of late Alois Kispotta, resident of Purana Lowadih, Samarth Apartment Campus, Namkum, PO Namkum, PS Namkum, District Ranchi (Jharkhand) ..... Petitioner

-- Versus --

1.The State of Jharkhand, through Chief Secretary, Government of Jharkhand, Ranchi having office at Project Building, Dhurwa, PO Dhurwa, PS Jagannathpur, District Ranchi

2.The Principal Secretary, Road Construction Department, Government of Jharkhand, having office at Jharkhand Mantralaya, PO Dhurwa, PS Dhurwa, Ranchi

3.The Special Secretary, Road Construction Department, Government of Jharkhand, having office at Jharkhand Mantralaya, PO Dhurwa, PS Dhurwa, Ranchi

4.The Deputy Secretary, Road Construction Department, Government of Jharkhand, having office at Jharkhand Mantralaya, PO Dhurwa, PS Dhurwa, Ranchi ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Vipul Poddar, Advocate For Resp.-State :- Ms. Shruti Shrestha, AC to Sr. SC-II

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6/21.01.2021 Heard Mr. Vipul Poddar, the learned counsel for the

petitioner and Ms. Shruti Shrestha, the learned counsel for the

respondent State.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for quashing

the notification dated 09.12.2013 contained in Annexure-12 whereby

punishment of reduction to the lower pay scale to his post and further

order of recovery of Rs.74,55,489.33 was passed against the petitioner.

4. The petitioner was appointed as Junior Engineer, Building

Construction Department, Patna on 29.08.1984 in the combined State of

Bihar. The petitioner was promoted to the post of Assistant Engineer,

Road Construction Department in 1996 and further to the post of

Executive Engineer, Road Construction Department in 2009. A First

Information Report dated 16.09.2009, being R.C.-14(A)/09(R) was

registered against the petitioner for the offence under section 420, 408,

471 of the Indian Penal Code and section 13(2) r/w 13(1)(d) of the

Prevention of Corruption Act for alleged involvement in Bitumen scam

while the petitioner was working as Assistant Engineer, Road

Construction Department, Daltonganj. The person who was posted as

disciplinary authority has passed the order of departmental proceeding

and the same person has also became the enquiry officer and the

punishment was also recommended by the same person.

5. The learned counsel for the petitioner submits that a

coordinate Bench of this Court has already considered this aspect of the

mater in the case of "Shivmuni Ram v. State of Jharkhand and Others',

WP(S) No.2298 of 2013, which was disposed of by order dated

23.09.2015. The said Shivmuni Ram was also a co-accused in the said

R.C. case.

6. The learned counsel for the respondent State submits that

the facts of the case of "Shivmuni Ram" and of the present case are

identical in nature except that Shivmuni Ram has preferred the appeal

whereas the petitioner has not preferred the appeal. To meet out this

distinguishable factor argued by the learned counsel for the respondent

State, Mr. Poddar, the learned counsel for the petitioner submits that the

writ Court can interfere under Article 226 of the Constitution of India if

the order in question is without jurisdiction which is well settled in view

of the judgment of the Hon'ble Supreme Court in case of "Whirlpool

Corpn. v. Registrar of Trade Marks", (1998) 8 SCC 1. Paragraph nos.14

and 15 of the said judgment are quoted hereinbelow:

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

7. In view of the above facts and considering this aspect of

the matter, the learned counsel for the respondent State has also

accepted that the nature in dispute is identical to "Shivmuni Ram" case

(supra), the writ petition is being disposed of in terms of the order

passed by this Court in case of "Shivmuni Ram v. State of Jharkhand and

Others', WP(S) No.2298 of 2013. While disposing of the "Shivmuni Ram v.

State of Jharkhand and Others', case, the coordinate Bench has

considered this aspect of the matter in paragraph no.20 and 21, which

are quoted hereinbelow:

"20. The Doctrine "No man can be judge of his own cause" can be applied only to the cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. For the Doctrine to

come into play, it must be shown that the Officer concerned has a personal bias or connection or personal interest or personally acted in the matter concerned and/or has already taken a decision one way or the other, which he may be interested in supporting.

21. It is clear as noon from the relevant facts noticed hereinabove that the concerned officer had not only recommended institution of 11 vigilance inquiry and investigation in the matter relating to bitumen scam, a subject matter with which the petitioner is concerned but had also come to a finding of guilt as a Inquiry Officer on being appointed by the disciplinary authority, respondent no.3. In that sense, the person had taken a decision one way or other which he/she may be interested in supporting while taking a decision as a disciplinary authority or as an appellate authority. The interference that can be easily drawn is that entire decision making process has suffered. The inquiry stands vitiated from the stage of appointment of inquiry officer itself. The charges are reported to be grave. The court need not comment upon them at this stage as fresh inquiry from the stage of appointment of inquiry officer is required to be undertaken on the same set of charges where the prosecution and the delinquent employee will have opportunity to prove the charges and/or defend themselves. However, the impugned orders and the departmental proceedings cannot be saved in the eye of law. Accordingly, the order of punishment dated 15th January, 2013(Annexure-11) and the appellate order dated 26th July, 2013 (Annexure-13) are quashed. However, liberty is reserved with the respondent authorities to proceed afresh from the stage of appointment of inquiry officer on the charges against the petitioner in the said departmental inquiry in accordance with law and after observance of principles of natural justice in a time bound manner."

8. In view of the findings recorded hereinabove, let a copy of

this order be sent to the Chief Secretary, Government of Jharkhand,

Ranchi for taking corrective steps.

9. The writ petition is accordingly allowed.

10. It is open to the petitioner to file application before the

appellate authority for pensionary benefit which will be considered by the

competent authority.

11. The writ petition stands disposed of.

( Sanjay Kumar Dwivedi, J) SI/,