Jharkhand High Court

Keshaw Prasad vs The State Of Jharkhand on 30 January, 2025

Author: Deepak Roshan

Bench: Deepak Roshan

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              L.P.A. No. 73 of 2024
                                        .....

 Keshaw Prasad, aged about 59 years, son of Late Hari Mohan Prasad, resident
 of Village Hesla, P.O. Hesla, P.S. Ramgarh, District Ramgarh (Jharkhand).
                                                        ... Petitioner/Appellant

                                    Versus
 1.    The State of Jharkhand, through the Deputy Commissioner-cum-District
 Magistrate, Ramgarh, having its office at District Collectorate, Ramgarh, P.O.
 and P.S. Ramgarh, District Ramgarh.
 2.    Deputy Commissioner-cum-District Magistrate, Ramgarh, having its
 office at District Collectorate, Ramgarh, P.O. and P.S. Ramgarh, District
 Ramgarh.
 3.    Deputy Development Commissioner-cum-Departmental Enquiry
 Officer, having its office at District Collectorate, Ramgarh, P.O. and P.S.
 Ramgarh, District Ramgarh.
 4.    Deputy Collector, Establishment, Ramgarh, having its office at District
 Collectorate, Ramgarh, P.O. and P.S. Ramgarh, District Ramgarh.
 5.    District Land Acquisition Officer, Ramgarh, having its office at District
 Collectorate, Ramgarh, P.O. and P.S. Ramgarh, District Ramgarh.
                                                 ... Respondents/Respondents.
                                        .....
CORAM:                  HON'BLE THE CHIEF JUSTICE
                        HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                       .....
For the Appellant       : Mr. Sumeet Gadodia, Advocate
                          Mrs. Shilpi Sandil Gadodia, Advocate
                          Ms. Shruti Shekhar, Advocate
                          Mr. Prakhar Harit, Advocate
                          Mr. Nillohit Choubey, Advocate
For the Respondents      : Mr. Ashok Kumar Yadav, Sr. S.C.-I
                           Mr. Aditya Kumar, A.C. to Sr. S.C.-I
C.A.V. ON 23/01/2025                                 PRONOUNCED ON:30/01/2025
Per Deepak Roshan, J.

The instant intra-court appeal is preferred by the writ

petitioner/appellant challenging the order dated 23.01.2024 passed by the

Writ Court in W.P.(S) No. 5840 of 2023, wherein writ application filed by

appellant was dismissed as not maintainable on the ground of availability

of alternative remedy of appeal under Jharkhand Government Employees'

(Classification, Control and Appeal) Rules, 2016 [hereinafter referred to

as 'Rules of 2016'].

2. The brief fact of the case is that appellant was appointed on

20.12.1999 on the post of 'Clerk' at Hazaribagh Collectorate and was

scheduled to retire from service on 28.02.2026. A departmental

proceeding vide order dated 20.12.2017 was initiated against this

appellant while serving him charge-sheet, primarily on the ground of

alleged irregularities committed in payment of compensation with respect

to land acquisition pertaining to Land Acquisition Case No. 01/2011-12

initiated by District Land Acquisition Officer, Ramgarh. During the

relevant period, i.e. 2015-16, appellant was posted as 'Upper Division

Clerk' in the office of District Land Acquisition Officer, Ramgarh.

3. It is the case of the appellant that before initiating departmental

proceeding, District Commissioner, Ramgarh directed District Land

Acquisition Officer, Ramgarh to submit its report pursuant to a complaint

made by one Fagu Besra regarding alleged irregularities in payment of

compensation. Pursuant thereto, the District Land Acquisition Officer,

Ramgarh submitted its report dated 26.09.2016, wherein alleged

irregularities in payment of compensation was pointed out. Thereafter,

another report dated 04.10.2016 was also submitted by District Land

Acquisition Officer, Ramgarh, wherein names of six persons including the

present appellant were identified as being responsible for such

irregularities and only thereafter, departmental proceeding was initiated

against the appellant. However, since appellant was not supplied the copy

of the aforesaid reports dated 26.09.2016 and 04.10.2016, appellant

requested the enquiry officer for supply of the aforesaid reports including

the complaint dated 20.08.2016 filed by the said Fagu Besra which led to

initiation of disciplinary proceedings.

4. Consequent upon the request made by the appellant, enquiry officer

vide its letter dated 16.06.2019 forwarded the application of the appellant

to District Land Acquisition Officer, Ramgarh i.e. presenting officer to

make available the required documents to the appellant but the said

documents were never supplied to the appellant and, on the contrary, the

presenting officer after a lapse of more than two years of the initiation of

disciplinary proceedings submitted a letter dated 21.02.2022 before the

enquiry officer stating, inter alia, that the two reports submitted by the

District Land Acquisition Officer, Ramgarh dated 26.09.2016 and

04.10.2016 be treated as written and oral evidence of presenting officer.

5. Consequent upon aforesaid letter submitted by presenting officer,

enquiry officer submitted its enquiry report without serving copy to the

appellant. Thereafter, disciplinary authority i.e. the Deputy Commissioner,

Ramgarh without issuing any second show cause notice to the appellant

and without supplying enquiry report passed an Office Order contained in

Memo No. 394 dated 18.09.2023 imposing penalty of compulsory

retirement from service in terms of Rule 14(xi) of the Rules of 2016.

6. Being aggrieved by the aforesaid penalty order, writ application was

filed by appellant which was dismissed by Learned Single Judge on the

ground of availability of alternative remedy of appeal in terms of Rules 24

of Rules of 2016.

7. Mr. Sumeet Gadodia, counsel appearing for appellant while assailing

the impugned order submitted that the Writ Court without considering the

fact that entire disciplinary proceeding was conducted in utter violation of

the principle of natural justice, has relegated the appellant to avail the

alternative remedy of appeal which is not sustainable in the eye of law. It

has been submitted that existence of alternative remedy is not a bar in

exercise of writ jurisdiction, especially in cases, where there is violation of

the principles of natural justice.

8. Per contra, counsel appearing for state-respondent supported the

impugned order and submitted that appellant has an effective alternative

remedy of preferring an Appeal under Rule 24 of the Rules of 2016 and

writ petition was rightly dismissed.

9. Having considered the facts of the case, we are of the opinion that

dismissal of the writ petition by the Writ Court merely on the ground of

existence of alternative remedy of appeal is contrary to the settled

decisions of Hon'ble Supreme Court including the decision rendered in

the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai

& Ors, reported in (1998) 8 SCC 1. In the said judgment, the Hon'ble

Apex Court has reiterated the well-known exceptions with regard to bar in

entertaining a writ petition namely, where the writ petition has been filed

for enforcement of any of the fundamental rights or where there has been

a violation of the principles of natural justice or where the order or

proceedings are wholly without jurisdiction or the vires of an act is

challenged.

10. A bare perusal of the facts of the present case would reveal that one

Fagu Besra filed a complaint regarding alleged irregularities in payment of

compensation pertaining to L.A. Case No. 01/2011-12 and, pursuant

thereto, Deputy Commissioner, Ramgarh directed District Land

Acquisition Officer, Ramgarh to submit reports which were submitted

vide reports dated 26.09.2016 and 04.10.2016, wherein apart from other

persons, name of the appellant transpired as being responsible for such

irregularities.

11. On the basis of aforesaid reports, departmental proceeding was

initiated against the appellant, but, copy of the said reports were never

supplied to appellant despite the fact that appellant specifically demanded

for said reports and even the enquiry officer vide its letter dated

16.06.2019 directed the presenting officer to make available the required

documents to the appellant.

12. From the records of the case, it further transpires that on one hand,

copy of relied upon documents were not supplied to appellant and, on the

other hand, after lapse of more than two years, the presenting officer

submitted a letter before the enquiry officer dated 21.02.2022 to treat the

reports dated 26.09.2016 and 04.10.2016 as written and oral evidence of

the presenting officer.

13. Admittedly, no witnesses were examined and/or documents were

proved and no opportunity of cross-examination, whatsoever, was given to

the appellant far less supplying the copy of the enquiry report. Even no

second show cause notice was issued to the appellant and, straightaway,

the disciplinary authority i.e. Deputy Commissioner-cum-District

Magistrate, Ramgarh passed an order dated 18.09.2023 imposing penalty

of compulsory retirement upon the appellant in terms of Rule 14(xi) of the

Rules of 2016.

14. We are of the considered opinion that entire disciplinary proceeding

which was conducted against the appellant was in stark disregard to the

principle of natural justice and, in fact, after initiation of disciplinary

proceedings, no procedure, whatsoever, was followed before imposing

punishment upon appellant.

15. Under the aforesaid circumstances, we are of the opinion that the

Learned Single Judge failed to consider the aforesaid aspects of the matter

and without even considering the fact that entire disciplinary proceedings

were conducted in violation of principles of natural justice; dismissed the

writ petition, relegating the appellant to avail the alternative remedy of

appeal which in our opinion is not correct.

16. Ordinarily, we would have remanded the matter back to Learned

Single Judge for fresh adjudication but while issuing notice in the present

matter vide order dated 16.05.2024 it was recorded by us as under:-

"Order No. 03 / Dated: 16th May, 2024

After hearing the learned counsels for the parties, this Court has formed an opinion that at this stage an ad-interim order staying operation of the order of compulsory retirement dated 18.09.2023 need not be passed.

2. However, we indicate that if the petitioner finally succeeds he shall be entitle to full salary and allowances from the date of compulsory retirement.