Inder Prakash Gupta vs State of J&K & Ors.

The petitioner challenges Government order No. 18GR or 1982 dated April 24, 1982 and seeke its quashment on a number o grounds. Before

adverting to the grounds of challenge, it would be appropriate to give a brief resume of the facta, leading to this writ petition.

Shorn of details, the factual matrix reveals that on the basis of an anonymous complaint the petitioner was chargedof having fraudulently drawn an

amount of Rs. 468 37 as house rent. The two other charges made in the complaint were found baseless. A Departmental Inquiry was also

conducted against him, but the Inquiry Officer found n o case proved against the petitioner. However, one charge was proved against him after

inquiry conducted by respondent No 2, culminating in the following recommendation :

(a) That an amount of Rs. 468,87 drawn by him as house rent be recovered from him and remitted into the Govt. Treasury :

(b) That his one increment be withheld for two years without any effect on future increments; and

(c) That he be censured.

Upon receipt of the report from respondent No. 2, a showcause notice dated August 26, 1981 was served upon the petitioner in term of section

17 (6) or the J&K. Govt. Servants (Prevention of Corruption) Act of 1975 (hereinafter called the Act) calling upon the petitioner to show cause

why the proposed punishment passed on the recommendation of respondent No. 2 be not imposed on him. He replied the showcause notice

raising a number of issues and questioned the very constitution of respondentTribunal"". However, his reply did not find favour with respondent No.

1 and the order impugned came to be passed imposing three punishments upon him as had been recommended by respondent No. 2.

The petitioner is aggrieved of this order and challenges the same amongst others on the following grounds :

(i) That proceedings conducted by respondent No. 2 were void abinitio because the Tribunal was not duly constituted in terms of Section 6 (3) of

the Act :

(ii) That the showcause notice issued suffered from on incurable defection as much as the Governor had not recorded his satisfaction about the

correctness or otherwise of the findings recorded by the Tribunal and the punishment proposed by it in terms of Section : 17 (6) of the Act; and

(iii) that the very charge against the petitioner was grossly misconceived in view of Govt. order No. 237MD G of 1962 dated June 23,1962, by

virtue of which the petitioner was entitled to draw monthly allowance of Rs. 50/ as house rent regardless of his having actually made use of the

house for which the rent was being claimed.

The other grounds contained in the writ petitions were not seriously pressed before me. Therefore, I propose to confine to only these grounds as

were canvassed to project infection of statutory provisiones.

From the record it transpired that counteraffidavit had been filed against the original writ petition by one Shri G. N. Ahangar, the then Dy.

Secretary to Government Home Department. Thereafter, the petitioner sought amendment of the writ petition on Feb. 10, 1988 which was

allowed by this court on March 5, 1991, leading to the incorporation of two new grounds of challenge, which have material boating on the

controversy. Since no counteraffidavit has been filed on behalf of the respondents to the amended writ petition, averments made by petitioner go

unchallenged leading the validity of impugned action to be judged in the light of statutory provisions one. The necessity of going into other allied

thickets is also obvisted.

At the every outSet I am not inclined to accept the contention calling in question the very constitution of Tribunal. Under section 6 (3) of the Act,

the Tribunal was consist of:

(a) A chairman, who is or has been a Judge of a High court or a person qualified to be a Judge of a High court :

(b) A person who is or has been a District & Sessions Judge in the State :

(c) A person who is or has been Civil Servant of adequate administrative experience; and;

(d) a nonofficial of outstanding eminence and integrity.

It is submitted that Tribunal was without a nonofficial member and as such it was not duly constituted. The argument would have required

examination, but since no basis is laid for the contention, it can't but be rejected. Nothing is said in the writ petition about the existing constitution of

Tribunal and how it was not in conformity with provisions of Section 6 (3) of the Act. No particulars have been given about the Chairman and the

members so that it could be formed out whether it was validly constituted or not. On the basis of a bald allegation, I am afraid, it can't be declared

that Tribunal was not rightly constituted.

Coming to other issues, I find that showcause notice dated August 28, 1981 proposing the punishment to the petitioner is not in conformity with the

terms of Section 17 (6) of the Act and could not form the basis for passing the order impugned. The relevant section reads as under :

After the Tribunal has submitted its recommendation and the Governor has after satisfying himself about the correctness or otherwise of the

findings and the punishment proposed by the Tribunal arrived at a provisional conclusion with regard to the punishment to be imposed, the accused

shall be supplied a copy of the report of inquiry and called upon to showcause by a particular data why the proposed penalty should not be

imposed upon him.

Interpreting the terms of the provision, Mr. J. P. Singh contended that it was obligatory for the Governor to record his satisfaction about the

correctness or otherwise of the findings recorded by the Tribunal and punishments proposed by him. Since the showcause notice was silent

regarding the requisite satisfaction of the Governor, it suffered from a material defect and vitiated the order impugned.

I find force in the submission. This is so for the reason that the mandate of provision requires Governor to satisfy himself regarding correctness or

otherwise of findings receded and punishment proposed by the Tribunal. It is only upon reaching such satisfaction that he could arrive at a

provisional conclusion culminating in issuance of show cause notice. If there is nothing in the showcause notice to vindicate that he had reached the

requisite satisfaction, the inference would be that he had proceeded in the matter mechanically without arriving at any satisfaction. The notice would

be deficient in an essential requirement prescribed by the statute leading to vitiating of all consequential action. This line of reasoning finds support

when relevant provisions of 1962 Act are compared with that of 1975 Act. In Section 17 (5) of earlier Act words ""after satisfying about

correctness or otherwise"" were missing marking a significant departure and pointing to Legislative intent. In other words, under the old Act

Governor was"" not required to go into correctness or otherwise of the findings recorded by Tribunal or punishment proposed by it while making

his provisional conclusion He had to form provisional conclusion on the basis of what was before him without determining its correctness or

otherwise.

Under 1975 Act, he has been vested with more powers to go into correctness or otherwise of findings returned by Tribunal. He is empowered to

sit in judgement over what has been done by Tribunal. Therefore, it becomes imperative that he should indicate that he had reached requisite

satisfaction In terms of Section 17 f6) to arrive at a provisional conclusion. His failure to do so would render all subsequent action bad and

violative of the provisions of the Statute.

In the present case, the failure is apparent on the fact of the showcause notice, which, in my opinion, vitiates the order impugned and renders it

liable to be quashed.

This relieves me of the burden of dealing with other aspects. Mr. J. P. Singh has placed on record Govt. order No. 237/MD/G of 1962 dated

23rd June, 1962 to show that employees of petitioner's class were entitled to draw a monthly allowance of Rs. 50/as house rent regardless any

accommodation having been rented out by them, should the charge have been pressed Against the petitioner in the face of this Govt. order is the

question. I do not deem it necessary to go into this question because petitioner is entitled to relief otherwise.

In the result, allow this writ petition and quash Government order No. 18GR of 1982 dated April 24,1982.