Des Raj Gupta vs State & Ors.

Tejinder Singh Doabia, J.—The provisions of the Public SAervants (Inquiries) Act 1977 (1920 AD) hereinafter referred to as the Act are

being challenged as unconstitutional. It is submitted that the provisions of the aforementioned Act are not only discriminately therefore violative of

Article 14 of the Constitution of India but even otherwise these cannot be made applicable to the petitioners.

Facts in brief are as under :

Petitioners submit that they came to be appointed in the Cooperative Department. It is submitted that when petitioner No. 1 was posted as

General Manager in R.S. Pura Cooperative Marketing Society in the year 1992 he came to know that one Ashok Kumar Handa Accountant of

the Society had forged the signature of his superiors on the cheque book. By this forgery, huge amounts were withdrawn from the saving fund

accounts of the society. On acquiring knowledge of this fact he lodged a First Information Report with the Police Station R.S. Pura. Copy of this is

said to be annexure P/1 with the petition. It is further submitted that aforementioned Ashok Kumar Handa thereafter absented himself. Matter was

investigated. It is submitted that the Registrar of the Cooperative Societies instead of getting the matter covered by the First Information Report

examined and investigated at its level got issued a charge sheet against the petitioners. Broad allegation was that during the tenure of the petitioners

while looking after the affairs of the cooperative Society referred to above huge financial loss was caused.

Petitioner No. 1 had taken a plea that he had already lodged a First Information Report in this regard and that he was not responsible in any

manner for the inference which was sought to be drawn by the Registrar of the Cooperative Societies. It was basically submitted that it was Ashok

Kumar Handa who was responsible for loss. It was further submitted that this Ashok Kumar Handa was an employee of the Cooperative Society

and his services were brought to an end.

Further fact as pleaded is that on 16.9.94 a notice was issued to the petitioners whereby general allegations were levelled against them. Matter

was sought to be got examined under the Act. Perusal of letter dated 10.4.95 which has been issued to the petitioner No. 1 does make mention of

the fact that the matters mentioned in the above letter are going to be examined by the Commissioner of Enquiries. This is going to be done in terms

of Article 53 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. This letter is dated 10.5.95. It is this letter which is said

to have given a cause of action to the petitioners to approach this court. It is submitted that a notification has not been issued under the Act and

therefore Commissioner of Enquiries is not competent to go into question. It is said that the procedure which is applicable under the

aforementioned Act is different from one which is adopted when a departmental enquiry is conducted. It is submitted that this prescription of

different procedure under the Act of 1977 would render the statute as discriminatory, therefore, liable to be struck down. It is submitted that

petitioners have already been subject to departmental enquiry and therefore, there is no necessity to follow the procedure as indicated in the Act. It

is submitted that as departmental enquiry has already been held therefore taking resort to provisions of the Act 1977 would amount to putting the

petitioners in double jeopardy. For this reliance is placed on decisions reported as Union of India v. H.C. Goel, AIR 1964 SC 364, Shyam Lal v.

State of Uttar Pradesh & anr., AIR 1954 SC 369, Union of India & ors. v. E. Bashyan, AIR 1988 SC 1000. It is submitted that charges which

have been issued are vague.

Before proceeding to taking note of the argument put across by the petitioners it would be apt to notice the scope of Act 1977.

This Act deals with the inquiries into the behavior of public servants not removable from their appointments, without the sanction of the

Government or any of the Ministers. This is apparent from the preamble of this Act. Section 2 of this Act makes a provision to the effect that if any

matter is to be examined under the Act then article of charges are to be drawn out for public inquiry into the conduct of public servants. Authority

to whom public inquiry is to be entrusted is to be appointed by the Government. A person can be nominated to act as prosecutor. Charges which

are to be served on the public servant have to be in writing. The Commissioner appointed under the Act has been given all the powers which are

necessary for procuring the attendance of all concerned. This is so provided in section 8 of the Act. Any person disobeying any lawful process

issued by the Commissioner can be proceeded against under Section 9 of the Act. Copy of the charge and list to be furnished against whom the

proceedings are taken is taken care of by section 10 of the Act. Method and manner in which evidence is to be recorded can be spelled out from

section 13 of the Act. Person proceeded against is to be given full opportunity to defend himself. After the procedural steps indicated in sections

16, 18 and 20 have been gone into then report has to be submitted. Power of the Government to take notice of the report is apparent from section

22 of the Act. Government can hold further enquiry also and is given power to pass final order as may be deemed proper.

There can be no dispute with the proposition that the petitioners are public servants. Even when they were discharging duties as General

Manager in the Cooperative Society they would fall within definition of public servants. Petitioners in para 3 of the petition have admitted that they

are employees of the Cooperative Department and in that capacity they were appointed as General Manager. Therefore, to say that they are not

public servants and provisions of this Act would apply to them.

The question of constitutionality of the Jammu and Kashmir Public Servants Enquiries Act Samvat, 1997 (1920 AD) be now examined. The

challenge is made on the ground that in the face of provisions contained in the Jammu and Kashmir Civil Service Regulations, this procedure cannot

be adopted. These provisions are in pari materia with the provisions contained in the Central Act i.e. Public Servants Enquiries Act of 1850. This

Central Act has been commented upon in several judicial pronouncements. In Venkataraman v. Union of India, AIR 1954 SC 375 the view

expressed was that the only purpose for which an enquiry under the Central Act can be made is to help the government to come to a definite

conclusion regarding the misbehavior of a public servant and this enables it to determine provisionally the punishment which should be imposed

upon him prior to giving him a reasonable opportunity as contemplated under Article 311(1) of the Constitution of India. This provision was

examined by a Division Bench of the Punjab High Court in case reported as Kapoor Singh v. Union of India, AIR 1956 Punjab 58. It was

observed that the Central Act is an empowering Act and it vests the Government with the power to proceed against a Government servant who

has been guilty of misconduct. The fact that it is not obligatory on the Government to proceed against every Government servant against whom any

imputation may be made was held to be scarcely a violation of the provisions of Article 14. There is no question of any classification. To give such

discretion to the Government was held to be not only lawful but essential. It was observed that the Central Act does not in any manner violates

Article 14. Similar view was expressed earlier by the Punjab High Court in the case reported as Piara Singh's case (supra) was subject matter of

appeal before the Supreme Court of India. Upholding the view expressed by the Punjab High Court in para 16 of the judgment, it was observed

that if resort is had to Central Act then no discrimination is practised. It was observed that merely because resort can be had to two alternative

sources of authority, this would not make the provision discriminatory unless it is shown that the procedure adopted operated to the prejudice of

the Public servant. It was held in no uncertain terms that the plea of equality before law is not violated and the provisions are to liable to be

declared void. In a still later decision reported as R.P. Kapoor v. Partap Singh, AIR 1964 SC 295 the Supreme Court approved of the view

expressed in Kapur Singh's case (supra). In the face of above legal position, it cannot be said that the provisions of the Jammu and Kashmir Public

Servants Enquiries Act of Samvat 1997 (1920 AD) are in any way ultra vires of the Constitution. The requisite safeguards have been provided in

the Act. As a matter of fact the J&K Act is in pari materia with the Central Act. In view of the above no case is made out for interference. The

State is left free to proceed under the Act. This petition is found to be without merit and is dismissed.