STATE OF J&K Vs. YASH BHASIN

JUDGEMENT

(1.) THIS is a letters patent appeal against the judgment of Bhat J. in a writ petition entitled Yash Bhasin Vs. the State of Jammu and Kashmir. The learned Judge has allowed the writ petition and quashed the Government Order No. INF/43/68 dated 18 -9 -1969 of the Director of Information read with Go ­vernment Order No. 67(GR)(AC) 68 dated 12 -10 -1968.

(2.) IN the writ petition Yash Bhasin averred that he was appointed as Information Officer in the Information Depart ­ment of the State in the year 1961 which post he held till 1967. On 28 -3 -1967 the Anti -Corruption Commission (Gazetted) of the Jammu and Kashmir State framed a charge sheet under the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962 against him and he was sus ­pended. Enquiry held by the Commission resulted in submis ­sion of findings and in making certain recommendations to the Government. It was recommended that the pay of the petitioner be reduced by two stages in his present pay scale. The reduc ­tion was to remain effective for a period of three years and the order was to operate to postpone future increments for the same period. When this recommendation was received by the Go ­vernment a show cause notice was issued to the petitioner against his removal from service. The petitioner submitted his reply and after that the State passed the Government Order No. 67 -GR(AC)68 dated 12 -10 -1968 in the name of the Governor whereby it was ordered that the petitioner be demoted to the next lower grade and his period of suspension be treated as leave of whatever kind be due to him. It was further direct ­ed that the petitioner may not be considered for promotion for a period of two years from the date of the said order. In pur ­suance of this order, the Director of Information passed the im ­pugned order whereby he adjusted the petitioner as Assistant Information Officer in the Assistant Directorate of Information, Jammu. The petitioner contended that the whole trial, the find ­ings arrived at and the recommendation of the Commission were illegal and the consequent orders passed thereon were also illegal and ultra vires. The Commission could have no jurisdiction to proceed with the complaint of the Deputy Development Secre ­tary against the petitioner. At best the conduct of the petitioner amounted to misconduct and a complaint of misconduct could be lodged by the Officer authorised by the Sadar -i -Riyasat by general or special order. Assuming that the Commission had jurisdiction even then the findings of corruption by the Com ­mission were not warranted by the facts of the case and the evidence produced before it. At any rate the Government was bound to accept the recommendation of the Commission. It could not over -ride or ignore the recommendation of Commis ­sion and had no power to impose a greater penalty than that recommended by the Commission. The show cause notice of the Government proposing the punishment being in excess of the recommendation of Commission was against the principle of natural justice. The petitioner was appointed on the gazetted post and could not be demoted to non -gazetted one. The Commission could recommend only one or more punishments specified in Jammu and Kashmir Civil Services (Classification, Control and Appeals) Rules 1956 and the punishment imposed on the petitioner was not a punishment covered by any of the prescribed punish ­ments. The Government could not inflict any of the punishments upon the petitioner other than the one for which a show cause notice had been given, therefore the infliction of this punish ­ment upon the petitioner without a notice to show cause against its infliction was bad. The Government through its Secretary General swore in a counter -affidavit in which the position adopt ­ed by the petitioner in his petition was not accepted. It was averred that there was no violation of legal and fundamental rights of the petitioner. The impugned order could be passed by the Governor after observing the procedure prescribed. The inquiry held against the petitioner was in accordance with the provisions of the Anti -Corruption Act. A show cause notice for the removal of the petitioner from service was served upon him. He was given opportunity to show cause against the punish ­ment proposed. There was no legal infirmity in the impugned order.

(3.) ON a consideration of the matter before him the learned Single Judge found that the petitioner was reduced from a gazetted post to a non -gazetted one and from a post which carried a higher scale of pay to one which carries a lower scale which was a clear case of reduction in rank. In the view of the learned Judge the respondents could not do so, therefore, the final order of the Government communicated to the petitioner was liable to be set aside. It was, however, found by the learn ­ed Judge that the procedure adopted by the Governor in issuing show cause notice and awarding the punishment actually im ­posed on the petitioner did not at all contravene section 126 of the State Constitution. The petitioner had been charge -sheeted and that was the first notice. He was found guilty and show cause notice was given to him about the infliction of a particular punishment. He replied to the notice and there is nothing wrong in inflicting the punishment except the one pointed out. That the Commission had jurisdiction to proceed in the matter of corruption against the petitioner was affirmed in the order under appeal. The findings and recommendations of the Commission were held to be based on solid facts and evidence both oral and documentary recorded by the Commission and this matter could not be challenged in writ. Because of his findings in favour of the petitioner as stated above the learned Judge allowed the petition and set aside the impugned order.