B S SOMASHEKARAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) the short facts leading to the appeal are as follows: the appellant was working as assistant public prosecutor. Consequent to his appointment as such on 23-9-1969, he was posted to the court of the judicial magistrate first class at manvi during the year 1975. On 11-12-1975 a trap case was laid. When the appellant was sitting in the bar association of manvi, one person by name narasappa came at 12-20 p.m. and paid money for the proper conduct of his father's case. At the time when the money was received by the appellant, the anti-corruption officers caught the appellant and seized the currency notes. Those currency notes were subjected to phcnolphthale in test. Panchanamas were drawn and the statement of the appellant was taken. As a result, it was concluded that the said narasappa had approached the appellant and the appellant had taken narasappa to the bar association of the manvi court where the appellant demanded Rs. 50/- for the conduct of the case effectively. The office of the deputy superintendent of police, bureau of investigation, state vigilance commission, gulbarga was declared as a police station. One amaresh was the deputy superintendent of police. It was he who headed the raiding party. He submitted the matter to d.b. desai, inspector of vigilance at raichur and he found that the appellant had to be proceeded with by way of disciplinary action. This opinion was forwarded to the state vigilance commissioner on 31-1-1976 recommending for initiating departmental enquiry. One chandulal, superintendent of police attached to the state vigilance commission formed his opinion which was also accepted by the state vigilance commissioner who recommended to the state government for holding a departmental enquiry under Rule 6(2) of the state vigilance commission rules read with Rule 14-a of the Karnataka civil services (classification, control and appeal) rules, 1957 (hereinafter referred to as the c.c.a. rules). By an order dated 19-3-1976 the vigilance commissioner was directed by the state government to hold departmental enquiry against the appellant on the allegation of accepting illegal gratification. On 9-4-1976 the vigilance commissioner appointed the assistant director of vigilance (i) to hold an enquiry. The appellant was served with the article of charge on 5-5-1976 to the following effect: "that you Shri B.S.Somashekaraiah, (a.g.o.) while working as assistant public prosecutor at manvi, on 11-12-1975 at about 12 noon in the bar association room of the j.m.f.c. court, manvi, demanded and accepted an illegal gratification of Rs. 50/- from Sri narasappa s/o Sri hanumanlhappa, mudlapur village, manvi taluk, for properly conducting the criminal case c.c. No. 678/74 on the file of the j.m.f.c. court, manvi, in which case his father was a complainant and thus you are guilty of grave misconduct." this charge was denied. Whereupon, an enquiry took place. On the completion of the enquiry, on 9-2-1977 the state vigilance commissioner submitted his findings and recommended the imposition of penalty of dismissal of the appellant. On the report of the enquiry officer and on the recommendation of the vigilance commissioner, the state government passed an order on 24-12-1977 to the following effect: order "on a detailed consideration of evidence and the records of the case the government of Karnataka find that there are no valid grounds to disagree with the inquiry officer and the vigilance commissioner, both regarding the findings and the proposed punishment, the imposition of the penalty of dismissal of the accused government officer (sri b.s. somashekaraiah) from seervice. The charge framed against the accused government officer (sri b.s. somashekaraiah) is proved. In the circumstances, the governmentof Karnataka hereby order the dismissal of the accused government officer, Sri b.s. somashekaraiah, from government service with immediate effect, and also order to treat the period of his suspension as such. By order and in the name of the governor of karnataka. Sd/- (a. Ncelakantayya) under secretary to government, department of law & parliamentary affairs." as a result, the appellant was punished. It is against this order the appellant filed an appeal to the governor of karnalaka under Rule 18(2) of the c.c.a. rules. The appeal was rejected by the communication issued in favour of the ap- i pellant dated 6-7-1978. This order was challenged in W.P. No. 10302 of 1978. Our learned brother Justice dodda kale gowda, by his judgment dated 19-2-1986 dismissed the writ petition for the reasons stated in his judgment. Hence (he appeal.

(2.) Sri b.b. mandappa, learned counsel for the appellant, urges the following points for our consideration: in the instant case no opinion has been formed by the vigilance commissioner to the effect that the appellant was to be proceeded with ' under a departmental enquiry. Unless and until he had recommended the same, the question of the government directing the same will not arise. It is only chandulal who was the then superintendent of police attached to the stale vigilance commission who had formed the opinion, therefore, the reference to departmental enquiry itself is bad in law and is againsl the provision of Rule 6(2) of the stale vigilance commission rules as well as Rule 14-a of the c.c.a rules. The appellant was not furnished with an enquiry reporl on the completion of the enquiry, as a result, it was not possible for him to canvass the correctness of the findings before the government came to the conclusion wilh refer cnce lo the imposition of penally of dismissal. The law on this aspecl has been laid down in mahabaleshwar v state of karnataka, 1982(1) kar. L.j. 105. This question is itself in a melling pot as seen from the decision in union of India v e. Bashyan, AIR 1988 SC 1000, which has been referred to a larger bench. Therefore, the failure to furnish a copy of the report of the enquiry officer will vilialc the enlire enquiry. Laslly, it is submilled that the appellate authorily is the governor. He had not considered the appeal in accordance with Rule 25 of the c.c.a. rules. Il is not a speaking order. Therefore, this would vitiate the appellate order.

(3.) the learned government advocate, in opposition would submit that it is incorrect to slate that the vigilance commissioner had not formed an opinion. On the contrary, the records clearly disclose that both with regard to suspension as well as taking departmental action, the vigilance commissioner had formed an opinion and in fact it was his recommendation which was taken into consideration by the government. After article 311 of the Constitution had been amended by forty second amendment, it is no longer possible for the appellant or any delinquent officer to contend lhal he must be furnished with the copy of the reporl. The objcct of furnishing the copy of the report was at the lime when the second show cause notice in relation to the punishmcnl was issued. The law as il stood prior to the amendment was, he could not only challenge the correctness of the findings but also the quantum of punishment. The law has been substantially altered now and as a result, the question of furnishing a copy of the report prior to the imposilion of punishment does nol arise at all because the govcrnmcnl was yet to make up its mind wilh reference to the imposilion of punishment. The law in this regard has been succinctly laid down in secretary, central board of e &c v k.s.muhalingam, AIR 1987 SC 1919, which relied on the earlier ruling in union of India v tulsi ram palel, AIR 1985 SC 1416. Therefore, it is that principle which has to be applied. Lastly, it is submitted lhat it is not correct lo urge lhat there has not been a proper consideralion by the appellalc authority, namely, the governor. On the contrary, the records clearly show lhal thc consideration by the governor has been slriclly in accordance wilh Rule 25 of the c.c.a. rules. What was furnished to the appellanl was a communication by the secretary to the governor with reference to the dismissal of the appeal by the governor. The governor, being an appellate authority, after going through the entire file, had come to the conclusion that the appeal was liable to be rcjccled. Therefore, it is nol corrccl to contend lhal the order of the governor is nol a speaking order. Besides, where the order is confirmatory in nature, t here is no nccessily lo write a detailed order provided the file discloses that there has been a proper consideration. That exactly is the position here.