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Judgment
This petition seeks to quash the order of the Government No. OM(AC) No. 69/12/(l) dated J2874 Annexure 'C' the order of the respondent
No.2 dated 2881974 as also the order of respondent No.3 dated 821975 forming Annexure 'H' and 'K' respectively. Petitioner No. 1 was
working as an Executive Engineer in Public Health Engineering Division Jammu in the year 1956. 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
petitioner 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 2 V519'. 5
passed an order of demotion of the petitioners. The petitioners thereafter moved the High Court in Writ of Certiorari for quashing the Governor's
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 tae 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
28571 decided to write to AntiCorruption 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 Govt. 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 Govt. to refer the matter to the Law Deptt. (vide letter of the Commission Annexure 'C'. Thereafter the
Govt. (vide Govt. Order No. 9/GR of 1971 dt. 261071) passed an order rescinding the Governor's order from the date it was issued as if no such
order was ever issued (vide 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. 27 FDD of 1973 dt. 7673 (Annexure E). Petitioners
No. 2 and 3 were also reinstated and subsequently promoted. According to the petitioners the Govt. did not feel like taking any further action
against the petitioners and therefore, passed the order of recission of the Governor's 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 Govt. on 1871974 asking the
latter to send the file of the petitioner for further necessary action. He took the view that the case should be reopened.
(2) 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 respondent No. 2 and 3 ordering de novo trial in the case is wholly
illegal on the following grounds :
i) Respondent No. 2 has not acted bona fide in recalling the case in 1974 ignoring the earlier views of the full Commission and he could not thus
overrule the full Commission. There was no provision in the Act authorising the Chairman, after the report had been sent to the Govt. by the
Commission declining to offer any comments on the reopening of the case.
ii) the member of the Anti Corruption Commission who did not record the evidence in the case or otherwise acted as a member of the First
Commission which tried the petitioners cannot by merely hearing the arguments dispose of the case.
iii) the Govt. having sought the advice of the Commission and also having seen the judgment of the High Court has rescinded the order of the
Governor and had reinstated the petitioner No. 1 retrospectively and had even promoted petitioners No. 2 and 3. The petitioners could not be
subjected to double jeopardy when they had already underwent punishment for (one and a half) years whereas the total punishment was for 2
years. This should have been taken into consideration by the Govt. while passing the order of reinstatement.
iv) The Commission cannot review its previous report under any provisions of the Act.
ii) De novo trial cannot at any rate be ordered in the case and de novo trial cannot be had by a member who did not sit in the enquiry.
(3) Shri Teja Singh Secretray, O & M (Vigiance) Sringar has sworn in a reply affidavit in which he has sworn the following fact:
(4) 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 Governor's order as also the order of reinstatement of the petitioners
were passed by the Govt. That the Govt. approached the AntiCorruption Commission for its views and that the Commission wrote back to the
Govt. that it could not express any view in the matter has also bean admitted. But he has affirmed that the Govt. could initiate a do 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 do novo
inquiry in the matter' The order of the Chairman allotting the case to respondent No 3 is perfectly valid. There is nothing 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 Govt is not precluded to reopen the inquiry which has not been concluded on merits.
(5) Shri D. N. Koul, Chairman Anti Corruption Commission has also filed a reply affidavit in which he has deposed that setting aside of the order
of the Governor by the High Court only meant that the petitioners were restored to the original position in the sense that they were deemed to be
under suspension. The Commission's recommendation being legally invalid had to be corrected by the Commission. It is admitted that the enquiry
against the petitioners was conducted by the 3 member Commission which included Chairman. Therefore, the assertion of the petitioners that the
case was not decided by all the 3 members was not correct. Since the 2 members who held the enquiry differed from each other in the findings
arrived at the recommendations made, the chairman was perfectly justified and legally competent to refer the matter to another member under Sec.
17 (a) Sub para 3 of the Prevention of Corruption Act. Respondent No. 2 has denied that his action smacked of any mala fides. He has taken
strong exception to this imputation made by the petitioners against him.
(6) I have heard the learned counsel for the parties. In my opinion the case of the petitioners lies in a narrow compass and must be decided on a
short point. When the complaint of corruption against the petitioners was heard and concluded by the Anti Corruption Commission and it made
recommendation to the Governor for imposing punishments on the petitioners and after the Governor imposed punishment on the petitioners, a writ
petition was filed in the High Court challenging the validity of the recommendations of the Commission as also the order of the Governor. The writ
was allowed as it was noticed that from the stage of making of the recommendations to the stage of the passing of the order by the Governor the
proceedings suffered from legal infirmity. They violated the principles of natural justice. Therefore, the recommendation made by the Commission
and the consequent order of the Governor imposing punishment on the petitioners were found invalid. As a result of this these were quashed. The
legal effect of the quashing of the order of Governor was that the petitioners were relegated to the same position which they had occupied before
the order of the dismissal was passed i. e. that the petitioners would be deemed to remain under suspension till fresh recommendations were made
after hearing the petitioners by the 3rd member. It entirely rested with the Govt. and not with the Commission to pursue the case of the petitioners,
the reason being that the Commission after it had decided the case had become functus officio and it could not revive the case by itself unless the
Govt. asked it to do so. This is very much clear from the letter of the Govt (Annexure 'A') and the reply of the full Commission thereto (vide
Annexure 'C') declining to make any comments, or giving its views, If therefore, the Govt. was of the view that the matter should be pursued from
the stage where the illegality had crept in then it should have asked the Commission to start afresh from that stage and ask the third member of the
Commission to afford an opportunity to the petitioners to be heard in the matter. Thereafter the Commission could submit its fresh
recommendations to the Governor. But this course was not adopted. On the other hand as stated above, the Govt. (Vide Annexure 'A' addressed
a letter to the Anti Corruption Commission in which it wrote to the Commission that the Govt. intended to issue a separate order for rescinding
Governors order of punishment and thereby restoring the petitioners to their original posts from the date of their demotion. It was also mentioned
therein that the Govt. considered to give the petitioners full pay against their original posts with effect from the said date. Views of the Commission
were solicited as to whether the Commission had any objection for treating these officers on duty against their original posts. This letter was
considered by the full Commission and a reply was sent to the Govt. that the Commission had considered the contents of the letter. It was of the
view that not being seized of the case it was not in a position to express any opinion. There was no provision in the Anti Corruption Act under
which the Commission was competent to express its opinion in a case which was not before it. The Govt. was advised to approach the Law
Department. On receipt of this letter and after referring the case to the Law Department the Govt. decided to rescind the Governors order of
punishment. Accordingly order No. 90/GR of 1971 dated 26th October, 171 Annexure 'D' was passed which is reproduced as follows :
Consequent upon the judgment of the Hon' ble High Court dated 2551971 in writ petition No. 32 of 1970, the order No. 42GR of 1970 dated
23570 imposing various punishments upon Sh. P. K. Kohli Executive Engineer, Ved Parkash Tagotra Supervisor and Sh. Navin Chander Gupta,
Overseer* shall be deemed to have been rescinded w. e. f. the date it was issued as if no such order was ever issued.
By order of the Governor.
This was followed by another order No. 273P DD of 1973 dated 761974 which runs as under :
Sanction is accorded to the creation of a post of Executive Engineer in the scale of Rs. 5001100 for the period of 441963 to 17111971 in the
Electricity (O & M Deptt) and the adjustment of Sh. P. R. Kohli thereon.
X X X X X
By order of the Governor of J & K.
Sd/ K. B. Pillia
Addl. Sedretary to Govt. Power Development Department
(7) Now the true effect of the two orders is that order No. 90/GR of 1971 has rescinded the order of the Governor w. e. f. the date it was issued
as if no such order was ever issued. This order would put back the petitioners in the same position which they had occupied before. Now before
this order, the petitioners were facing enquiry and were under suspension. The effect of the second order i. e 273/PDD dated 7773 is that Shri P.
R. Kohli petitioner No. 1 was adjusted against the newly created post of Executive Engineer. He was reinstated and adjusted retrospectively from
441968 to 171171. Thus the petitioners were reinstated and were paid arrears of their emoluments right from 1968 to 1971.
(8) Learned counsel appearing for the petitioners has vehemently contended that when the Govt. itself passed the two orders referred to above, it
would follow that the Government presumably did not intend to pursue the case of the petitioners any further. If the Govt. meant otherwise than in
that even it should not have sought the views of the Commission and should not have passed the order of reinstatement and adjustment of the
petitioner. In fact petitioners 2, 3, have thereafter been even promoted. The Chairman respondent No. 2 and for that matter respondent No. 3
could not order de novo enquiry. Reliance is placed on the latest authority of the Supreme CourtAIR 1975 SC 2177.
(9) In my view there is great force in this argument. When the Govt decided to rescind the Governor's order and also further it decided to reinstate
the petitioners and then reinstated them retrospectively and even promoted petitioners No. 2 and 3 (which fact is not disputed before me) it could
not on the mere advice of the Chairman Anti Corruption Commission which is only a recommendatory body ask the Commission to hold do novo
trial in the case. Once the order of dismissal was rescinded and the petitioners were reinstated retrospectively it would follow that the Govt.
intended not to pursue the case any further for in that event it should not have reinstated them at all and then paid their arrears of pay. Having once
decided to do this, the Govt. cannot now ask the Commission to hold de novo and second enquiry. In A. I, R. 1975 SC 2277, it has been Laid
down that no rule of double jeopardy bars but absence of power under rule inhibits a second enquiry by a disciplinary authority after the
disciplinary case has come to close and finally rescinded by an order of reinstatement. Second enquiry cannot be restarted in the absence of
specific power to review or revise. That was a case where an officer ... a manager in the Live Stock Farm was subjected to disciplinary
proceedings. An enquiry was held into his conduct. The Inquiry Officer submitted adverse findings against him. A show cause notice indicating the
penalty of dismissal was issued to him and thereafter he was ordered to be reinstated on the same post w. e. f. the date of reported on duty.
Afterwards a de novo enquiry was ordered into his conduct. It was held that the order of reinstatement had the effect of closing the inquiry against
him. The officer could not be proceeded against afresh after the order of reinstatement. It could be presumed that he had been exonerated. I,
therefore, on the authority of the Supreme Court hold that de novo or second enquiry against the petitioners would be against law. Even on the
principle of double jeopardy it is not warranted. The Govt. is expected to take firm decisions. It cannot vacillate some times suspending a
delinquent officer and then deciding to reinstate him and then again subjecting him to disciplinary proceedings. Nor would respondent No. 2 tender
any advice to the Govt. on the subject when he had no case before him and when also the full Commission had earlier refrained from expressing
any opinion on the resumption of enquiry. The Act did not clothe him with any such power.
For the foregoing reasons, I would therefore: allow this writ petition and quash the impugned orders.