Jharkhand High Court
Ravi Chandra Jha vs The State Of Jharkhand Through Its ... on 12 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 101 of 2015
Ravi Chandra Jha, Son of Late Hem Chandra Jha, resident of
Williams Town, Deoghar, P.O. and P.S. Deoghar, District Deoghar, at
present Executive Engineer, Building Construction Division, Simdega,
P.O. and P.S. Simdega, District Simdega ... ... Petitioner
Versus
1. The State of Jharkhand through its Secretary, Road Construction
Department, Project Building, Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District Ranchi
2. The Secretary, Building Construction Department, Project Building,
Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi
3. The Secretary, Road Construction Department, Jharkhand, Project
Building, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi
4. Smt. Shila Kisku Rapaz, Departmental Enquiry Officer-cum-
Conducting Officer, Resident of Town Administration Building,
H.E.C. Golchakkar, Dhurwa, Ranchi, P.O. Dhurwa, P.S.
Jagannathpur, District Ranchi, Jharkhand
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Jay Prakash Jha, Senior Advocate
Mr. Aishwarya Prakash, Advocate
Mr. Ashish Kumar Thakur, Advocate
For the Respondents : Mr. K.K. Singh, Advocate
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18/12.12.2022 Heard Mr. Jay Prakash Jha, learned senior counsel appearing on
behalf of the petitioner along with Mr. Aishwarya Prakash and Mr.
Ashish Kumar Thakur, Advocates.
2. Heard Mr. K.K. Singh, learned counsel appearing on behalf of
the respondents.
3. This writ petition was initially filed seeking a direction upon
the respondent no. 1,2 and 3 not to proceed against the petitioner in
consonance of the letter dated 11.09.2014 and to quash the order dated
09.07.2014 passed by the respondent no. 4 whereby finding of guilt
was recorded by the conducting officer alleging violations of the
principles of natural justice and fair play. The petitioner also
challenged the order dated 11.09.2014 of the under Secretary, Road
Construction Department by which the second show cause notice was
issued to the petitioner by the Secretary, Road Construction
Department. During the pendency of the present case, the order of
punishment as contained in memo No. 8687 (S) dated 23.12.2015
passed by the Deputy Secretary, Road Construction Department,
Jharkhand which was challenged vide I.A. No. 206 of 2016 seeking
amendment of the main writ petition which was allowed and
consequently the final order of punishment of the disciplinary
authority is also under challenge in the present case.
4. The arguments of the learned counsel for the parties have been
recorded in order dated 12.10.2022. The grievance of the petitioner,
interalia, is that the respondents have not followed the procedure laid
down under Article 311 (2) of the Constitution of India as well as Rule
55 and 55 (A) of the Civil Services (Classification Control and
Appeal) Rules.
5. During the course of arguments, the learned counsel for the
respondents has opposed the prayer of the petitioner by submitted that
the petitioner has an efficacious alternative remedy of appeal against
the impugned order of punishment and no relief as prayed for by the
petitioner be granted in this writ proceedings. Such plea has been
raised in the counter affidavit also. The learned counsel for the
respondents has also submitted that there has been no violation of
principles of natural justice.
6. In response to the plea of alternative remedy, the learned
counsel for the petitioner had submitted that since there has been gross
violation of principles of natural justice therefore the petitioner has
invoked writ jurisdiction which may be entertained. He had also
referred to the judgment passed by the Hon'ble Supreme Court
reported in (2003) 2 SCC 107 (Harbanslal Sahnia and another
versus Indian Oil Corpn. Ltd and Others).
7. The preliminary issue regarding availability of alternative
remedy is required to be considered first.
8. It is not in dispute that the impugned order of punishment is an
appealable order.
9. Upon going through the records of this case, this court finds
that disputed questions of facts are involved in the present case and
this court is not inclined to enter into such disputed facts in writ
jurisdiction at this stage. In the judgement relied upon by the learned
counsel for the petitioner reported in (2003) 2 SCC 107 (Harbanslal
Sahnia and another versus Indian Oil Corpn. Ltd and Others) it has
been reiterated that the rule of exclusion of writ jurisdiction by
availability of an alternative remedy is a rule of discretion and not one
of compulsion. In an appropriate case, inspite of availability of
alternative remedy, the high court may still exercise its writ
jurisdiction in at least three contingencies: (i) where the writ petitioner
seeks enforcement of any of the fundamental rights, (ii) where there is
failure of principles of natural justice, (iii) where the orders or
proceedings are wholly without jurisdiction or the vires of an act is
challenged.
10. The law is well settled that the discretion to decide an issue in a
writ jurisdiction, in spite of availability of alternative remedy, rests
with the writ court. The law is equally well settled that disputed
questions of facts cannot be decided in writ jurisdiction.
11. This court is of the considered view that when disputed
questions of facts are involved and there is an alternative remedy of
appeal available to the writ petitioner, the appropriate and efficacious
remedy would be to agitate the grievance before appellate authority
who would look into the matter thread bare and is also competent to
pronounce upon the disputed questions of facts and law.
12. After going through the records of this case, this court finds that
the petitioner has, interalia, alleged violation of principles of natural
justice. From the perusal of the records of this case it appears that the
charge sheet was issued to the petitioner vide prapatra-ka dated
11.11.2013 along with letter dated 19.11.2013 (Annexure-3) and in the
memo of evidence only 3 documents were mentioned as evidence
from the side of the department. In response to prapatra-ka the
petitioner filed his reply vide letter dated 12.12.2013 and had,
interalia, referred to affidavit filed before Hon'ble Jharkhand High
Court in W.P. (P.I.L.) No. 6698 of 2011 stating that the Hon'ble High
Court has fully exonerated the petitioner. The entire records of the
disciplinary proceeding, including the documents referred to in the
memo of evidence is not available before this court for consideration
and appreciation as to what further plea was taken by the petitioner in
the enquiry proceedings and how the enquiry officer proceeded with
the matter. Disputed questions of facts are involved in the present
case. The plea of the petitioner regarding violation of the principles of
natural justice by itself is disputed question and would require scrutiny
of the enquiry proceedings and the materials available before the
enquiry officer in the light of the applicable rules governing the
disciplinary proceedings. This court is not inclined to enter into
disputed questions of facts involved in this case and is of the
considered view that alternative remedy of appeal available to the
petitioner would be efficacious.
13. Accordingly, this writ petition is disposed of enabling the
petitioner to avail alternative remedy of appeal within a period of two
months from today. All points are left open for consideration by the
appellate authority.
14. Pending I.A., if any, is closed.
(Anubha Rawat Choudhary, J.)
Binit
