AB GANI PATWARI Vs. S M RIZVI

JUDGEMENT

(1.) THE petitioner seeks to set aside the findings, conclusions and recommendations of the Anti -Corruption Commission (Non -Gazetted) dated 10 -10 -73 and also the order of dismissal issued by the Governor vide Dy. Secretary General Department order No. 68 -GR dated 27 -9 -1973 as being violative of Article 311 (2) of the Constitution of India read with section 126 of the State Constitution and also the relevant sections of the Prevention of Corruption Act of 1962 and the Rules made thereunder: The petitioner also claimed relief under Art. 14 of the Constitution, but the right to claim the said relief has been withdrawn by rim by means of an application.

(2.) THE petitioner has averred that he was posted as patwari in Halqa Tokina Tehsil Pulwama in the year 1966. A complaint " was lodged with the Anti Corruption Commission that the petitioner in his capacity as patwari demanded and accepted illegal gratification of Rs. 105 from one Mohd Gurco of the said village. The Commission charge sheeted the petitioner. But the petitioner was not given an opportunity to engage a lawyer with the result that the prosecution witnesses could not be properly cross examined. The petitioner was not directed by the Commission to file his statement or to produce evidence in defence. This violation of the Statute by the Commission resulted in practically resorting to exparte proceedings against the petitioner which has occasioned miscarriage of the Justice in his case. There was no evidence to support the prosecution story that the accused had accepted the amount of Rs. 105/ - as bribe. The Commission returned an exparte finding of guilty against the petitioner and recommended the following punishments: -

(3.) THE Commission submitted its findings to the Governor. On receipt of the findings the Governor addressed a notice to the petitioner asking him to show cause why the extreme penalty of dismissal from Government service not be imposed upon the petitioner. The advance tendered by the Commission was ignored. The notice no where stated that the Government had accepted the findings and, conclusions of the Commission, nor did the notice give any reason for enhancing the punishment as recommended by the Commission to that of dismissal and for ignoring the advice of the Commission. As such the petitioner was not given reasonable opportunity to show cause against his dismissal, as he could not know the grounds on which the punishment as recommended had been enhanced. This according to the petitioner is violative of Article 311(2) of the Constitution of India and also Section 126 of the State Constitution. The said show cause notice also suffers from legal infirmity as it indicates that the Governor has already accepted the report of the Commission. Inspite of the petitioners reply the Governor made an order of dismissal which the petitioner as alleged as far beyond in excess of the recommendations of the Commission. The enquiry did not comply with requirements of statute and Rules" made thereunder and as such the order of punishment was bad in law. Shri S. M. Rizvi, Anti Corruption Commission (Non -Gazetted) has sworn in a reply affidavit in which he ha