STATE OF J&K Vs. ABDUL GHANI PATWARI

JUDGEMENT

(1.) THIS appeal was initially heard by two of us, namely, Anand J. and myself, and we being of the view, that the controversy involved in the appeal was of some importance, which needed an authoritative pronouncement by a larger Bench, we recommended constitution of a larger Bench to hear the appeal. That is how it has been placed before a Full Bench.

(2.) THE facts leading to the appeal, briefly put, are as follows : The respondent, a Govt. servant was tried by the Anti Corruption Commission (non- gazetted), under the Jammu and Kashmir Govt. Servants Prevention of Corruption (Commission) Act, 1962, hereinafter referred to as 'the Act', and was found guilty. The Commission accordingly transmitted its report to the Governor, recommending therein certain punishments, short of dismissal from service, to be imposed on him. The Governor issued a notice to the respondent to show cause as to why he be not dismissed from service and even after considering the reply of the respondent, imposed on him the punishment of dismissal from service. The respondent not only challenged this order in a writ petition, but also challenged the entire proceedings before the Commission on a number of grounds including the one - and with which alone we are concerned, that as he was not supplied copy of the proceedings along with the show cause notice issued by the Governor which was a mandatory requirement of Sub-Section (5) of Section 17 of the Act, not only the order under which he was dismissed from service, but also the entire proceedings before the Commission stood vitiated. No other ground excepting the one of non-compliance with Sub-Section (5) of Section 17 found favour with the learned single Judge (Mian Jalal-ud-Din J., now Hon'ble the Chief Justice), who accordingly issued a writ, but only to the limited extent of quashing the proceedings taken onwards from the stage of Sub-Section (5). The learned Judge was of the view, that provisions of Sub- Section (5) were mandatory, as such, their non-compliance vitiated the final order passed by the Governor. The State has felt aggrieved of this order, hence the appeal.

(3.) IN support of the appeal, Mr. Malik has urged three grounds. His first ground is, that the provisions of Sub-Section (5) of Section 17 of the Act are not mandatory, but only directory, and their non-compliance in the absence of any prejudice to an accused, shall be of no consequence. Since no prejudice had been pleaded by the respondent, no writ could be issued in his favour. The other ground relied upon by the learned counsel is, that even if these provisions are deemed to be mandatory still their non-compliance would not be material, where an accused knew or could have otherwise means of knowing the contents of the proceedings. As the respondent in the instant case had the knowledge or at least the means of acquiring the knowledge of the proceedings, the order under appeal was bad in law. His last ground is that the expression 'copy of the proceedings' occurring in Sub-Section (5) is too vague and general which could not reasonably admit of strict compliance.