P R KOHLI Vs. STATE

JUDGEMENT

(1.) THIS petition seeks to quash the order of the Government No. OM(AC) No. 68/12/(l) dated 12 -8 -1974 Annexure C the order of the respondent No. dated 28 -8 -1974 as also the order of respondent No. 3 dated 8 -2 -1975 .forming Annexure H and K respectively. Petitioner No. 1 was working as an Executive Engineer in Public Health Engineering Division Jammu in the year 1966. Petitioners No. 2 and 3 were working as Supervisor and Overseer respectively in the said Division and were working under petitioner No. 1. A complaint was lodged with the Anti -Corruption Commission against all the 3 petitioners in respect of certain acts of misconduct committed by them. The Commission found the petitioners guilty of practices of corruption but the two members of the Commission disagreed on the question of punishment to be imposed on them. As a result of this the matter was referred to the 3rd member who without hearing the petitioners recorded his own order. In the recommendation the Commission proposed punishment to be awarded to the petitioners. The Governor by his order No. 42/GR dated 23 -5 -1970 passed an order of demotion of the petitioners. The petitioners thereafter moved the High Court in Writ of Certiorari for quashing the Governors order as the recommendation made by the Commission was in violation of the legal principles. The High Court allowed the petition and quashed the order of the Governor observing that failure on the part of the third member of the Commission to have afforded an opportunity to the petitioners to address him in the case had indeed seriously prejudiced the petitioners and had occasioned gross failure of justice. Therefore, the recommendation made by the Commission and the final order of the Governor passed pursuant to the recommendation were not sustainable in the eye of law as they offended the principles of natural justice. After examining the said judgment the Government vide letter (Annexure A) dated 28 -5 -1971 decided to write to Anti -Corruption Commission asking for their; views and opinion in the matter. In the said letter the Government proposed to reinstate the petitioners. The full Commission considered the letter of the Government. It expressed the view that there was no provision in the Government Servants Prevention of Corruption (Commission) Act, 1962 enabling the Commission to give any opinion to the Government on the subject. The Commission advised the Government to refer the matter to the Law Department (vide letter of the Commission Annexure C). Thereafter the Government (vide Government Order No. 9/GR of 1971 dated 26 -10 -1971) passed an order rescinding the order of the Governor No. 42/GR of 1970 dated 23 -5 -1970. The said order rescinded the Governors order from the date it was issued as if no such order was ever issued (aide Annexure D). As a further follow up action the Government created a post of Executive Engineer and reinstated and adjusted, the petitioner No. 1 against this post retrospectively (vide Government Order No. 273 -PDD of 1973 dated 7 -6 -1973 Annexure E). Petitioner No. 2 and 3 were also reinstated and subsequently promoted. According to the petitioners the Government did not feel like taking any further action against the petitioners and therefore, passed the order of recission of the Governors order and also the order of reinstatement and of promotion of petitioners No. 1 - and 2 and 3 respectively. Later on it seems that the Chairman of the Commission wrote to the Government on 18 -7 -1974 asking the latter to send the file of the petitioner for further necessary action. He took the view that the case should be reopened. The Government, thereafter directed the Commission to hold de novo trial of the petitioners. Respondent No. 2 has allotted the case to respondent No. 3 and has asked him to issue summons to the petitioners for holding de novo trial. Respondent No. 3 have now proceeded in the case. The petitioners contend that the order of respondent No. 1 as also of respondents No. 2 and 3 ordering de novo trial in the case is wholly illegal on the following grounds : -

(2.) SHRI Teja Singh, Secretary, O and M (Vigilance) Srinagar has sworn in a reply affidavit in which he has sworn the following facts :

(3.) HE has admitted that a case of corruption was brought against the petitioners before the Anti -Corruption Commission which resulted in the punishment of demotion of the petitioners. He has also admitted that the High Court quashed the impugned order of the Governor as well as the recommendation of the Commission on the basis of which the order was passed by the Governor. The High Court had held that the order of the Governor stood vitiated as the third member to whom the case was later on entrusted had failed to afford an opportunity of hearing to the petitioners before him. He has also admitted that the order of recission of the Governors order as also the order of reinstatement of the petitioners were passed by the Government. That the Government approached the Anti -Corruption Commission for its views and that the Commission wrote back to the Government that it could not express any view in the matter has also been admitted. But he has affirmed that -the Government could initiate a de novo inquiry against the petitioners under law. Accordingly the Chairman respondent No. 2 was asked and he wrote to respondent No. 3 to hold a de novo inquiry in the matter. The order of the Chairman allotting the case to respondent No. 3 is perfectly valid. There is noting wrong in the circumstances of the case if a Member who is not associated with the recording of the statements is asked to hear the arguments and dispose of the case. The Government is not precluded to reopen the inquiry which has not been concluded on merits.