RAJA BASHIR AHMAD KHAN Vs. STATE

JUDGEMENT

(1.) THROUGH the medium of this Letters Patent Appeal Challenge has been thrown to the judgment of learned Single Judge of this court passe don 21.11.1980 in writ petition No. 193/79 titled, Raja Bashir Ahmad Khan versus State of J&K and others. The Writ Court has dismissed the writ petition of the appellant.

(2.) SHORN of details the facts giving rise to this appeal are that the appellant, Raja Bashir Ahmad Khan, was employed as Research Officer, Disease Investigation, Sheep and Goat in the Animal Husbandry Department and was posted at Srinagar. A complaint was lodged against him which resulted in the investigation of the case by the Anti corruption Commission under J&K Civil Servants Prevention of Corruption (Commission) Act, 1962. The Commission framed articles of charge against the appellant . He was tried by the Commission for the offenses alleged against him and the entire evidence from both sides was recorded during the trial. During such proceedings, J&K Government Servants Prevention of Corruption (Commission) Act, 1962 (hereinafter referred to as the 1962 Act) was repealed and was replaced by another Act called the J&K Public Servants (Prevention of ) Corruption Act, 1975 (hereinafter referred to as the 1975 Act). Under the 1975 Act an authority called the Anti -Corruption Tribunal came into existence in place of Anti -corruption Commission which existed under the 1962 Act. Under the 1975 Act a bench of Tribunal consisting of two members, namely, Mr. Justice Khalil Ahmad, Chairman and Mr. L.D. Thakar as member heard the case and passed two conflicting judgments. Whereas the member, Shri L.D. Thakar vide his judgment dated 30th June, 1976 found the appellant guilty of the charges of misappropriation and recommended his dismissal from service and further recommended that the accused appellant be prosecuted in a court of law along with Sh. Ghulam Rasool Reshi, Store Keeper; Sh. R.L. Bhat, Cashier; Sh. Nazir Ahmad and also the proprietor of firm Dwarika Nath Dhar and Sons, the Chairman found the appellant to be innocent and held that the charges were not proved against him. Difference of opinion having thus arisen, a reference in terms of Section 18 of the 1975 Act was made to the third member, namely, Shri G.M. Mir for his opinion. Shri G.M. Mir heard the case afresh after giving opportunity of being heard to the parties. But ultimately he concurred with the view taken by Shri L.D. Thakar, finding the appellant guilty. A notice was then issued to the petitioner appellant by the Governor to show cause as to why he be not dismissed from service. The petitioner replied the notice, but the Governor, not being satisfied with his reply, passed an order on 20th August, 1979 being Order No. 27 -GR -B&F dismissing the appellant from service. Appellant through the medium of aforesaid writ petition challenged the dismissal order of various grounds which did not find favour with the Writ -Court which dismissed the writ petition. Appellant has thus assailed the judgment of the Writ -Court through this appeal on various grounds.

(3.) THE grounds of appeal are that there was difference of opinion between the Chairman, Mr. Justice Khalil Ahmad and the Member, Mr. L.D. Thakar. According to first proviso to Sub -section 3 of Section 18 of the 1975 Act only the question regarding which difference of opinion occurred was to be referred to the third member through the Chairman and the opinion of the third member was to prevail. Learned counsel for the appellant has contended that Mr. Justice Khalil and Mr. LD. thakar both exonerated the appellant with regard to the charge of misappropriating an amount of Rs. 9992,03. Difference of opinion between the two members was only with regard to the charge No.1 i.e. misappropriation of 100 grams of Girdleys and 6 Nos. of Kipps. But no point of reference was made to the third member. Instead the whole case was referred to third Member, Mr. G.M. Mir, who heared the case afresh and formulated his opinion regarding the whole case which is against the provisions of the Act of 1975. Secondly, it was argued that under section 11(6) of the 1975 Act, Governor has not recorded his satisfaction about the correctness or otherwise of the findings and the punishment proposed by the Tribunal, but has arrived at the provisional conclusion in regard to the punishment to be imposed and he has in a mechanical and routine manner dealt with the case without applying his mind, accepted the recommendation of the Tribunal and passed the dismissal order against the appellant.