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2018 Supreme(Jhk) 1836
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Rajesh Shankar, J.
Shailesh Kumar - Petitioner
Versus
The State of Jharkhand & Ors. - Respondent
W.P.(C) No. 3473 of 2017
Decided On : 05-10-2018
For the Petitioner: Mr. Rajiv Ranjan, Sr. Adv. Mr. Shray Mishra
For the State : Mr. K. M. Verma, G.P-I Mr. Shadabbin Haque, A.C to G.P-I
Headnote:
Indian Penal Code,1860 - Sections 409,150,467,468,471,120B & 34 - Scheduled District Act, 1874 - Section 3 - Bihar and Orissa Public Demand and Recovery Act, 1914 - Section 9 - FIR - Raised jurisdictional issue before the Certificate Officer - Petition is that petitioner was posted in District for a period - It was alleged against petitioner that during his posting at District he defalcated public money- An FIR being Case was lodged Sections against petitioner who was arrested and is said to be in judicial custody since - A certificate case was also instituted against petitioner for recovery of defalcated amount and a notice Section was issued him for recovery petitioner filed an objection Section before Certificate Officer and apart from other grounds he raised jurisdictional issue before Certificate Officer in terms with - However same was rejected vide order which gives rise to filing present writ petition –Held, Petitioner has further contended that impugned order has been passed by Certificate Officer without providing sufficient opportunity to petitioner to lead evidence in support of his case and same is not a reasoned one- Court have gone through judgments cited by learned counsel for petitioner Court held that it is far too well settled that an authority in making an order in exercise of its quasi-judicial function must record reasons in support of order it makes- learned Judges emphatically said that every quasi- judicial order must be supported by reasons rule requiring reasons in support of a quasi- judicial order is this Court held as basic as following principles of natural justice- And rule must be observed in its proper spirit- A mere pretence of compliance would not satisfy requirement of law quasi-judicial authority while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show cause proceeding- A show cause proceeding is meant to give person proceeded against a reasonable opportunity of making his objection against proposed charges indicated in notice- Counsel for petitioner cannot be entertained by this Court in view of fact that an alternative/efficacious/statutory remedy of appeal is available with petitioner which appellate authority has ample power and jurisdiction to adjudicate such issues - Petition dismissed
ORDER :
The present writ petition has been filed for quashing the order dated 07.06.2017 (which has wrongly been typed as 07.16.2013 in the order sheet) passed by the Certificate Officer, Palamau (the respondent No.2) in Certificate Case No. 188 of 2017-18 whereby the application filed by the petitioner under Section 9 of the Bihar and Orissa Public Demand and Recovery Act, 1914 [hereinafter referred to as ‘the Act, 1914’] has been rejected.
2. The factual background of the case, as stated in the writ petition, is that the petitioner was posted in the District Nazarat at Palamau for a period of 8-9 years. It was alleged against the petitioner that during his posting at District Nazarat at Palamau, he defalcated public money. An FIR being Daltonganj P.S. Case No. 44 dated 01.03.2017 was lodged under Sections 409,150,467,468,471,120B & 34 of the IPC against the petitioner, who was arrested and is said to be in judicial custody since 01.03.2017. A certificate case was also instituted against the petitioner for recovery of the defalcated amount and a notice dated 04.05.2017 under Section 7 of the Act, 1914 was issued to him for recovery of Rs.9,41,07,208/-. The petitioner filed an objection under Section 9 of the Act, 1914 before the Certificate Officer, Palamau and apart from other grounds, he raised jurisdictional issue before the Certificate Officer in terms with Section 3(6) of the Act, 1914. However, the same was rejected vide order dated 07.06.2017 which gives rise to filing of the present writ petition.
3. The learned Sr. counsel for the petitioner submits that the respondents themselves have not ascertained as to what amount is due and payable by the petitioner which is apparent from the fact that the notice was served with regard to recovery of Rs.98 Lacs whereas, the certificate case was initiated for recovery of Rs.9,41,07,208/-. Section 3(6) of the Act, 1914 provides the definition of “Public Demand” as any money or arrear which is due under Schedule-I of the Act, 1914. Schedule-I of the Act, 1914 provides the dues which can be recovered by resorting to the provisions of the Act, 1914 and in the said list, it has nowhere been mentioned that any amount due owing to alleged defalcation will be recovered under the said Act. The objection of the petitioner was not entertained by the Certificate Officer and the same was rejected vide order dated 07.06.2017 by way of a non-speaking order without dealing with any issue involved in the present case. The objection so filed under Section 9 of the Act, 1914 is required to be decided in terms with Section 10 of the Act, 1914 which provides for recording evidence, but in the present case, without any application of mind, the objection so filed by the petitioner with regard to maintainability of the certificate case has been dismissed by passing a non-speaking order dated 07.06.2017. The Certificate Officer had no jurisdiction to entertain the case, as the alleged defalcated amount does not come within the purview of the definition of “Public Demand” as provided under Section 3(6) of the Act, 1914. The criminal case on the basis of which the present certificate proceeding was initiated against the petitioner, is still pending and as such the issue as to whether the petitioner had defalcated the alleged amount or not, is yet to be decided. The concerned criminal Court has yet to examine the allegation of defalcation levelled against the petitioner and till the same is pending, the petitioner is not liable to pay any amount.
4. The learned Sr. counsel for the petitioner puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Oryx Fisheries Private Limited Vs. Union of India & Ors. reported in (2010) 13 SCC 427 and submits that even in the cases of administrative orders, the reasons are required to be spelt out while disagreeing with the show cause reply. Learned counsel puts further reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Kranti
