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Farooqi (M.S.) Vs. Anti-corruption Commission (by Chairman and Members) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in(1969)IILLJ78J& K
AppellantFarooqi (M.S.)
RespondentAnti-corruption Commission (by Chairman and Members) and anr.
Cases ReferredIn Nawa Mal v. Nathu Mal
Excerpt:
- j.n. wazir, c.j.1. this is a writ petition filed by m.s. farooqi of the indian police service at present superintendent of police, commandant, 2nd battalion, j.k.a.p., against respondents 1 to 3 praying that the said respondents be restrained from proceeding against the petitioner under the jammu and kashmir government servants' prevention of corruption (commission) act, 1962, and respondent 4 be restrained from passing any order of suspension of the petitioner or imposing any other penalty on the recommendation of respondents 1 to 3. the petitioner alleged that he is an employee of the police department and belongs to the all india service known as the indian police service and is subject to the provisions of the all india services act, 1951, and the rules made thereunder. he admits that.....
Judgment:

J.N. Wazir, C.J.

1. This is a writ petition filed by M.S. Farooqi of the Indian Police Service at present Superintendent of Police, Commandant, 2nd Battalion, J.K.A.P., against respondents 1 to 3 praying that the said respondents be restrained from proceeding against the petitioner under the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, and respondent 4 be restrained from passing any order of suspension of the petitioner or imposing any other penalty on the recommendation of respondents 1 to 3. The petitioner alleged that he is an employee of the Police Department and belongs to the All India Service known as the Indian Police Service and is subject to the provisions of the All India Services Act, 1951, and the rules made thereunder. He admits that the rules made under the All India Services Act, 1951, apply to the State and are applicable in their entirety to the petitioner. Under these rule a complete and comprehensive procedure is laid down for proceeding against Indian Police Service and Indian Administrative Service officers and if any enquiry is to be conducted against their conduct a board of inquiry is to be appointed by the Government which must consist of at least one member from the service to which the officer belong,

2. It is pleaded that the constitution of the Commission under the Prevention of Corruption (Commission) Act, 1962, neither fulfils the requisite condition mentioned above, nor is it appointed by the Government to enquire against the conduct of the petitioner. The Commission therefore has no jurisdiction to enquire into the allegations against the petitioner. It is averred that the Commission without jurisdiction has started enquiry against the petitioner on an anonymous application. The petitioner has further stated that according to the Constitution of India, Parliament has got the exclusive powers to make laws with respect to all the matters governing All India Services. The petitioner being an Indian Police Service officer is governed by the All India Services Act of 1951 and the rules made thereunder whether his present appointment is in the State of Jammu and Kashmir or elsewhere in the country. Lastly it is stated that the inquiry commenced by the Commission against the petitioner is invalid being discriminatory in as much as an officer of the petitioner's status serving in other parts of India is entitled to the benefit of the rules made under the All India Act whereas the petitioner serving in the State is denied those benefits. The action taken by the Commission 1B, therefore, hit by Article 14 of the Constitution. It is prayed that a writ of certiorari, mandamus or any other appropriate writ or direction be issued quashing the proceedings which are being taken by respondents 1 to 3 against the petitioner and that respondent be restrained from passing any order of suspension of petitioner from his service on the recommendation of respondents 1 to 3.

3. This petition is resisted by the respondents on various grounds, and the Advocate-General appears on their behalf. Preliminary objections are taken that the Commission constituted under Section 5 of the Jammu and Kashmir Prevention of Corruption Act, 1962, exercises the power of the High Court for the purpose of inquiry including consideration and disposal of questions relating to its jurisdiction, that as the said Commission is invested with power of the High Court for performance of its duties the writ petition is not maintainable and that the writ petition is misconceived and does not lie.

4. In reply to the averments in the petition the respondents have stated that the petitioner being an employee under the Government of the State of Jammu and Kashmir in connexion with the affairs of the State, besides being subject to the provisions of All India Services Act, 1951, and the rules made thereunder, is also subject to the penal laws of the State and the provisions of the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act. 1962. It is not obligatory to appoint a board of inquiry to go into the charges against the petitioner. The enquiry can be held against the petitioner not only under the provisions of All India Services (Discipline and Appeal) Rules, but also under the Public Servants' Inquiries Act and other cognate, allied as also penal laws of the State. In other words, the petitioner besides being amenable to the other penal laws of the State is also amenable to the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, and the Prevention of the Corruption Act, Pvt. 2006, which are in force in the State. The procedure under the Jammu and Kashmir Servants' Prevention of Corruption (Commission) Act, 1962, is elaborate and substantially the same as under All India Services (Discipline and Appeal) Rules.

5. It is further pleaded that the Commission which is validly constituted under the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, is competent and has jurisdiction to enquire into the charges of corruption against the petitioner which are as follows:

(1) He kept Mohammad Abdullah, constable No. 45 (who had at his request been transferred by the then Deputy Inspector-General of Police, Kashmir, from Baramullah district to Ladakh district) for his private work at his residence in Srinagar, where his family was living, from the end of January 1963 to the end of May 1964, during which period the constable drew his pay amounting to Rs. 1,411 from the police district, Leh; and

(2) he from January 1963 to March 1964, also paid the . aforesaid Mohammad Abdullah Rs. 985.50 as compensatory allowance (which allowance is permissible only to such Government servants as actually remain in the Ladakh district) and the amount so paid was refunded into the treasury on 13 May 1964 after the cognizance of the case by the Commission and after the first report of the Inspector-General of Police dated 7 April 1964 but such refund does not wipe out the consequences of the original withdrawal from the treasury.

It is further pleaded that the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, is a valid piece of legislation and in its pith and substance falls within the legislative competence of the State. The said Act is fully applicable to the Indian Administrative Service and Indian Police Service officers employed under the Government of the State of Jammu and Kashmir in connexion with the affairs of the State. There is, therefore, no question of the invalidity or inapplicability of the Act to Indian Administrative Service and Indian Police Service officers. Lastly, it was averred that the inquiry or trial before the Commission not discriminatory or violative of Article 14 of the Constitution of India.

6. Before we deal with points raised by the petitioner in his application we will dispose of the preliminary objections raised by the learned Advocate-General.

7. It is argued by the Advocate General that Section 9 of the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1932 (which will be referred to as the Commission Act hereinafter), pro vides that the Commission constituted under Section 5 shall have the powers of the High Court under any law for the time being in force in respect of the matters which are enumerated in that section and it is contended that as the Commission is invested with powers of the High Court for purposes of its duties no writ can be issued by the High Court against the Commission. According to the learned Advocate-General the legislature has conferred the powers of the High Court on the Commission and thereby it has created another institution exercising the powers of the High Court and therefore, a writ would not lie against the Commission which is invested with the powers of the High Court. In support of this contention reliance is placed on the decision of the House of Lords in Skinner v. Northallorton County Court Judge 1899 A.C. 439, in which it has been observed:

An order nisi, having been made for a certiorari to remove into the Queen's Bench Division and quash the above order and warrant on the ground of want of jurisdiction was afterwards discharged by Wright and Darling, JJ., and this decision was affirmed by the Court of Appeal.

8. It was laid down in that case that certiorari does not lie to bring up an order of a County Court Judge made when exercising bankruptcy jurisdiction as under statute the County Court was exercising the powers of the High Court in bankruptcy matters.

9. This authority would not be helpful in the present case. The judiciary in England cannot question validity of any Parliamentary enactment on the ground of its arbitrariness or unreasonableness. A statute passed by Parliament in England, whether good or bad, cannot be questioned in any Court. But that is not the case in India. In India laws enacted by the legislature can be questioned if they are in conflict with the provisions of the Constitution. The Commission set up under the Commission Act is not the High Court simply because it has been given certain powers which are exercised by the High Court in certain matters. All these matters in which the Commission can exercise the powers of the High Court are enumerated in Section 9 of the Commission Act. These are:

(a) summoning and enforcing the attendance of the accused;

(b) summoning and enforcing the attendance of any person or witness and examining him on oath or solemn affirmation;

(c) requiring the discovery or production of any document relating to the subject-matter of inquiry;

(d) receiving evidence on affidavits;

(e) requisitioning any public record or copy thereof relating to the subject-matter of inquiry from any Court or office;

(f) issuing commissions for the examination of witnesses, documents or other books of account relating to the subject-matter of Inquiry;

(g) to punish contempts In relation, to itself or any member thereof;

(h) to do all things necessary for, and incidental to, the purpose of the Inquiry; and

(i) generally to regulate its procedure In all respects.

In all these matters the Commission exercises the same power as that of the High Court but the Commission does not become the High Court by exercising the above mentioned powers. In the House of Lords' case cited above the County Court was exercising the powers of the High Court in bankruptcy matters under the Act of Parliament. Therefore, no writ could be issued against the County Court which was functioning as the High Court. The High Court in the State constituted by the State Constitution which lays down:

93. Constitution of High Court.--(1) There shall be a High Court for the State consisting of a Chief Justice and two or more other Judges.

(2) The High Court exercising jurisdiction in relation to the State immediately before the commencement of this Constitution shall be the High Court for the State.

The State Legislature cannot create any other High Court in the State as such legislation will be in conflict with the provisions of Section 93 of the Constitution and will, therefore, be invalid. Moreover, no special qualifications are provided in the Commission Act for the members constituting the Commission. The number of members constituting the Commission is provided in Sub-section (2) of Section 5 and Sub-section (3) provides:

The Chairman and other members of the Commission shall hold office for such term and receive such salaries and allowance as the Governor may determine.

Whereas we have in the Constitution itself the qualifications prescribed for the Judges of the High Court, their mode of appointment, their tenure and other conditions of service, therefore, it is manifest that the Commission, although exercising some powers of the High Court in certain matters, cannot be styled as the High Court and is amenable to the writ Jurisdiction of the High Court. The preliminary objection, therefore, raised by the learned Advocate-General is overruled.

10. The next question that falls for determination is whether in view of the provisions of the All India Services Act of 1951 read with the All India Services (Discipline and Appeal) Rules (hereinafter referred to as the rules) the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, is applicable to a case of corruption as denned In the Act against the members of All India Services allotted to the State At this stage it would be convenient to briefly state the provisions of the relevant articles of the Indian Constitution. Article 312 of the Constitution which was made applicable to the State of Jammu and Kashmir in 1958 provides:

312. (1) Notwithstanding anything in Part XI, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more All India Services common to the Union and the State, and, subject to the other provisions of this chapter, regulate recruitment, and the conditions of service of persona appointed, to any such service.

(2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article.

246. (1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the ' Union List'.

254. (1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the legislature of the State shall, to the extent of repugnancy, be void.

Entry 70 of List I--Union List in Schedule VII reads as under:

Union Public Services, All India Services, Union Public Service Commission

and entry 94 is as follows:

Inquiries, surveys and statistics for the purpose of any of the matters in this list.

11. While the legislatures of other States have exclusive power to make laws for such States or any part thereof with respect to any matters enumerated In List II, our State has a special status and there is no Concurrent List or State List in which, matters on which our State can legislate, are enumerated. All the residuary powers of legislation are vested in the State Formerly Article 312 of the Constitution did not apply to our State but it was made applicable to it in the year 1958. In 1951 Parliament enacted the All India Services Act 61 of 1951 for regulating recruitment and the conditions of service of persons appointed to an All India Service. Section 2 of this Act defines 'an All India Service' to mean

the service known as the Indian Administrative Service or the service known as the Indian Police Service.

Sub-section (1) of Section 3 provides:

The Central Government may, after consultation with the Governments of the States concerned including the State of Jammu and Kashmir, make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service.

The Central Government has made the rules in exercise of the powers conferred on it by the All India Services Act of 1951. The rules framed under the Act are called the All India Services (Discipline and Appeal) Rules, 1955. The relevant provisions of these rules read as under:

Clause (b) (iii) of Rule 2: 'Government' means in the case of a member of the service serving in connexion with the affairs of a State, the Government of that State.

12. Rule 3 provides for penalties which may be imposed on a member of the service and they are seven in number. Rule 4 provides for the authority who can impose the penalties. Sub-rule (2) of Rule 4 provides that the penalty of dismissal, removal or compulsory retirement can be imposed only by the Central Government whereas the other penalties enumerated in Rule 3 can be imposed by the State Government. The enquiry has to be held by the Government under whom the officer was serving at the time of the commission of the act or omission which renders him liable to punishment. Rule 5 prescribes the procedure for Imposing penalties and reads as under:

5.(1) Without prejudice to the provisions of the Public Servants' Inquiry Act, 1150, no order shall be passed imposing any of the penalties specified in Rule 3 on a member of the service unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself.

(2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.

(3) The member of the service shall be required within such time as may be considered by the Government reasonably adequate in the circumstances of the case, to put in a written statement of his defence and to state whether ha desires to be heard in person.

(4) The member of the service concerned may request for an access to official records for the purpose of preparing his written statement provided that the Government may, for reasons to be recorded in writing, refuse him such access if in its opinion such records are not strictly relevant to the case or it is not desirable in the public interest to allow such access.

(5) After the written statement is received from the member of the service in accordance with Sub-rule (3), or if no such written statement is received within the time allowed, Government may, if it considers it necessary, appoint a board of inquiry or an enquiry officer to Inquire into the charges framed against the member of the service and shall have the charges enquired Into as provided In Sub-rule (6). If the Government does not consider it necessary to appoint a hoard of inquiry or an inquiry officer, the Government shall inquire into the charges in such manner as it deems fit.

* * * (7) Where a board of inquiry is appointed, it shall consist of not less than two senior officers, provided that at least one member of such board shall be an officer of the service to which the member of the service belongs.

(8) The proceedings conducted against a member of the service under the provisions of this rule shall contain a sufficient record of the evidence and a report setting out the findings and the ground on which they are based, but shall not contain any recommendation relating to the penalty to be Imposed unless the Government has specially called for such recommendation. * * *

Rule 10 provides for right of appeal and Rule 19 for revision.

13. The State Legislature passed the Commission Act in 1962 and it is contended by the counsel appearing for the petitioner that it is not applicable to the Central Government servants who are members of the Indian Administrative Service or the Indian Police Service and are serving in the State. The Anti-Corruption Commission appointed under the Commission Act has held that the Commission Act is applicable to the members of the All India Services serving in the State. The petitioner therefore being a member of the Indian Police Service has filed this writ petition challenging the order of the Commission on the ground that the Commission Act is not applicable to his case. The learned Counsel for the petitioner has argued that under entry 70 of List I in Schedule VII it is the exclusive power of Parliament to make laws regulating the recruitment and the conditions of service of the persons appointed to an All India Service and it is within the competence of Parliament to make laws in regard to inquiries about the matters contained in List I. Therefore, the All India Services Act 61 of 1951 and the rules made thereunder are legislation made by Parliament under entry 70 read with 94 of List I. The State Legislature has passed the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, and has appointed the Anti-Corruption Commission under that Act which has held that the inquiry against the petitioner for the alleged act of corruption can be started under the Commission Act. It is argued that the Central Act passed by Parliament under its exclusive legislative power provides for inquiry in respect of acts and omissions of the members of the All India Services serving in the State. The Commission Act being the State law is repugnant to the Central Act as it encroaches upon the legislative fields in which Parliament alone can legislate. The learned Advocate-General has argued that the State in enacting the Commission Act has made provisions for inquiry into corruption, whereas Parliament has legislated upon an altogether different piece of legislation, viz., the acts and omissions of members of All India Service. The two enactments do not cover the same field but are operating in two different fields. Therefore, the question of repugnancy does not arise.

14. We are unable to agree with this contention of the learned Advocate- General. It is true that repugnancy arises when two enactments both within the competence of the two legislatures collide. If the competent legislature with a superior efficacy legislates on a certain subject covering all the branches of that subject, the enactments of the other legislature in regard to the same subject are overborne by the superior legislature. In the present case the question for consideration is whether or not the act of corruption would fall within the ambit of the All India Services Act and the rules made thereunder. The rules of interpretation of the entries are laid down by their lordships of the Supreme Court in a number of cases and reliance may be placed in this behalf on Calcutta Gas Co. (.Proprietary), Ltd. v. State of West Bengal A.I.R. 1862 S.C. 1044 in which it is held:

In the matter of construing entries in the lists given in Schedule VII of the Constitution, the following rules of interpretation are now well-settled. The power to legislate is given to the appropriate legislatures by Article 246 of the Constitution. The entries in the three lists are only legislative heads or fields of legislation; they demarcate the area over which the appropriate legislature can operate. It is also settled that widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of the Court to reconcile the entries and bring about harmony between them.

In Prafulla Kumar v. Bank of Commerce, Khulna A.I.R. 1947 P.C. 60 it has been observed as follows:

It is not possible to make a clean out between the powers of the Federal and Provincial Legislatures. They are bound to overlap and where they do, the question to be considered is, what is the pith and substance of the impugned enactment and in what list is its true nature and character to be found. The extent of invasion by the Provinces into subjects in Federal List is an important matter not because the validity of a Provincial Act can be determined by discriminating between the degrees of invasion but for determining the pith and substance of the impugned Act. The question is not, has it trespassed more or less but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not a Provincial matter, but a Federal matter. Once that is determined, the Act falls on one or the other side of the line and can be seen as valid or invalid according to its import.

15. The question in the present case is whether the nature and character of the subject-matter is covered by the Central Act or not. The Central Act and the rules made thereunder provide for inquiry into the acts and omissions committed by the member of All India Services allotted to the State In the performance of his duties. Giving the widest amplitude to the language of Rule 4(1)(6) the act of corruption on the part of a member of the service also is fully covered under this rule. The Act and the rules made thereunder express the intention of instituting proceedings on a member of the service who has committed any act or omission which renders him liable to any penalty specified in rule 3 of the All India Services (Discipline and Appeal) Rules, 1955. The subject-matter in regard to which laws are made is the inquiry into acts or omissions by a member of an All India Service. By giving ordinary meaning to the words 'act' or 'omission' it cannot by any stretch of imagination be said that the acts of corruption are excluded from these terms and the law is enacted only to inquire into the acts and omissions of a member of an All India Service minus his acts of corruption. The All India Services Act, 1951, made by Parliament and the rules made thereunder deal with acts or omissions by a member of the All India Service and the law so made deals with acts of corruption as well which are included in the acts and omissions mentioned in the rules. It is not necessary to specially mention the term 'corruption' in the rules in order to make them applicable to such acts.

16. As has been pointed out by Latham, C.J., in Bank of New South Wales v. Commonwealth (1948) 76 C.L.R. 1 at 186 which has been approved by the Supreme Court in State of Rajasthan v. G. Chawala : 1959CriLJ660 ;

A power to make laws 'with respect to' a subject-matter is a power to make laws which in reality and substance are laws upon the subject-matter. It 1B not enough that a law should refer to the subject-matter or apply to the subject-matter; for example, incometax laws apply to clergymen and to hotelkeepers as members of the public; but no one would describe an incometax law as being, for that reason, a law with respect to clergymen or hotelkeepers. Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or banking.

17. In Nawa Mal v. Nathu Mal it has been held as follows:

A law pertaining to the control of rents In cantonment areas falls within the ambit of entry 3 of List I of Schedule VII under the Constitution. The expression 'including the control of rents in this entry cannot be limited so as to exclude the control of rents as between private landlords and the tenants In cantonment areas. The regulation of house accommodation in cantonment areas, having regard to the wide scope of this expression, cannot be confined to the acquiring or requisitioning or allocating the house accommodation therein. By such regulation may include the control eviotions from or the letting out of, or, fixation of rents generally for houses situate in cantoment areas.

In our opinion, the All India Services Act and the rules made thereunder fully provide for inquiry into acts of corruption by the members of the All India Services allotted to the State.

18. It is contented by the Advocate-General that the provisions of the Commission Act and that of the Central Act and the rules made thereunder pertaining to inquiry into allegations of corruption are substantially the same and therefore no prejudice is caused to the petitioner if inquiry is conducted under the Commission Act, We have referred to the relevant rules which are made under the Central Act governing inquiry into acts or omissions by members of the All India Services. We have also gone through the provisions of the Commission Act, We find that the rules are more beneficial to members of All India Services serving In the State than the provisions of the Commission Act. The Anti-Corruption Commission has pointed out in its judgment some of distinguishing features of the Commission Act from the All India Services (Discipline and Appeal) Rules, 1955, as follows:

(a) The first distinguishing feature of this Act is that whereas the Commissions envisaged in the Public Servants' Inquiry Act, 1977 and the Prevention of Corruption Ordinance 2001, are in the nature of ad hoc commissions appointed for a particular case or cases, the Anti-Corruption Commission under this Act, is in the nature of a permanent body.

(b) The second distinguishing feature is that unlike the Public Servants' Inquiry Act, 1977 the Prevention of Corruption Ordinance 2001, the Civil Services' (Classification, Control and Appeal) Rules, 1956, and the Civil Services (Disciplinary Proceedings Tribunal) Rules, 1958, and also unlike the All India Services (Discipline and Appeal) Rules, 1955 (under which an inquiry into the conduct of Government servant can be held only at the instance of the Government), and also unlike the Prevention of Corruption Act 2006 (under which no Court can take cognizance of an offence of bribery punishable under Sections 161 to 165 of the Penal Code or of an offence of criminal misconduct as denned in it, except with the previous sanction of the Government or other authority competent to remove from service the Government servant concerned), an inquiry into allegations of corruption against a Government servant can be held under this Act by the Anti-Corruption Commission not only upon a report in writing made by an officer authorized in this behalf and a complaint before it, but also suo motu and on Information (which has been interpreted by the Commission to include anonymous information) received by it. It will be clear from the above that the Commission's power of taking cognizance of allegations of corruption are unfettered. The power of the Commission to direct investigation into allegations of corruption and to frame charges against a Government servant, referred to in Para. 9(d)(i), 9(e)(i) and 9(e)(ii) flow from this unfettered power of taking cognizance of cases.

(c) The third distinguishing feature is that the Act applies to a person 'who has received gratuity or any other post-retirement compensation from the revenues of the State,' in other words, to retired Government servants in receipt of pension or other post-retirement benefit.

(d) The fourth distinguishing feature is that the Act authorizes the imposition not only of the administrative penalties specified In Rule 30 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules. 1956, viz., dismissal, removal, etc., bat also provides for the Government servant concerned:

(i) being declared for ever or for any shorter period of time to be specified incapable of holding, or being appointed to, any public office;

(ii) being prosecuted for any offence in a Court of law.

19. The Central Act and the rules made thereunder are not as drastic as the provisions of the Commission Act. Under the Central Act and the rules made thereunder a member of an All India Service has to be informed in writing of the grounds on which it is proposed to take action against him and he has to be furnished with a statement of the allegations on which each charge is based. He is required to put in a written statement of his defence and to state whether he desires to be heard in person. He can ask for an access to official records for the purpose of preparing his written statement and after the receipt of the written statement the Government may, if it considers it necessary, appoint a board of inquiry or inquiry officer and if a board of Inquiry is appointed, one member of such board has to be an officer of the service to which the member of the service belongs. There is a right of appeal given to the officer and there is also a right of revision provided under the rules. We find under the Commission Act no such facilities and rights are available to a member of the All India services allotted to the State. Anonymous applications received by the Anti-Corruption Commission may entail an inquiry into frivolous allegations contained therein against a member of an All India Service. He may be unnessarily harassed by the police and ultimately the result may be that the allegations made against him may turn out to be false and frivolous, the member has no remedy against anyone for harassment and for his being put to Inconvenience and expense, as the Inquiry was commenced on the basis of an anonymous application. Under the Central Act and the rules made thereunder the foundation for ordering a formal Inquiry against a Public officer la the Government satisfaction that there are sufficient grounds for making such an inquiry into the truth of any imputation of misconduct by a member of the All India Services allotted to the State. It is, therefore, manifest that the rules are far more beneficial to a member of an All India Service than the provisions of the Commission Act which by no means are substantially the same as the provisions of the rules, as has been stated by the learned Advocate General.

20. It has been contended by the counsel for the petitioner that discrimination has been practiced against him inasmuch, as any act or omission committed by a member of an All India Service posted elsewhere has to be inquired into under the rules whereas the inquiry against the petitioner in regard to the allegations of corruption is being held under the Commission Act which is violative of Article 14 of the Constitution. It is not disputed that the petitioner belongs to the All India Service called the Indian Police Service. If the petitioner had been posted outside the State, Inquiry against him would have been ordered under the rules, for any act or omission on his part in the discharge of his duties, but being allotted to the State the Inquiry is being held under the Commission Act which amounts to discrimination practiced against the petitioner. There is a good deal of substance in this contention and, In our opinion, It must prevail. There being substantial difference in the protection to which a member of an All India Service is entitled if the Inquiry is conducted under the rules than if it is under the Commission Act, a clear case of discrimination arises. Article 14 of the Constitution enjoins upon the State not to deprive any person of equality before the law. If inquiries against two members of the All India Service similarly circumstanced are ordered according to procedures which differ substantially from each other, there is a clear case of discrimination. The provisions of the Commission Act are more drastic and prejudicial to the interests of a member of the All India Service than the rules. The proceedings under the Commission Act are, therefore, liable to be struck down as Infringing Article 14 of the Constitution.

21. In the result we are of the view that the members of All India Services serving In the State are governed by the All India Services Act and the rules made thereunder and the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962, is not applicable to them. Moreover, there is a clear discrimination between the member of All India Services posted elsewhere and the members of the same service posted in the State inasmuch as inquiry against the former for acts of corruption is to be held under the Central Act and the rules made thereunder, while against the latter for the same acts of corruption inquiry is to be held under the Commission Act, the provisions of which are more drastic than the Central Act and the rules made thereunder. In our view the proceedings under the Commission Act against the petitioner are hit by Article 14 of the Constitution and are, therefore, struck down. This petition is allowed and respondents 1 to 3 are restrained from proceeding against the petitioner under Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962.

22. In the circumstances of the case, we make no order as to costs.

S.M. Fazl Ali, J.

23. I agree.

J.N. Bhat, J.

24. I agree.


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