Skip to content


Ghulam Hassan Vs. State of J. and K. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1986CriLJ70
AppellantGhulam Hassan
RespondentState of J. and K. and ors.
Cases ReferredIn Syed Yaqoob v. K.S. Radhakrishnan
Excerpt:
- .....under article 226 of the constitution of india or section 103 of the state constitution, and the enquiry held by an administrative tribunal is not governed by the strict and technical rules of the evidence act, but it is equally well settled that the high court can in writ proceedings interfere where the impugned findings recorded by the tribunal are not supported by any legal evidence, or where the conclusion of the tribunal on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. in syed yaqoob v. k.s. radhakrishnan : [1964]5scr64 , it was held that if a.finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. it was further held therein.....
Judgment:
ORDER

K.K. Gupta, J.

1. The petitioner has filed this petition for quashing order No. 32-GR of 1982 dt. 12-10-1982 and also the enquiry held by respondent 2 which was concluded vide order dt. 1-8-1980.

2. It is averred by the petitioner that in the year 1973, he was posted as Division Officer, Police Division, Nageen (Hazratbal), Ghulam Hassan Sultan, lodged a complaint against him before the then Chairman, Anti-Corruption Commission, Srinagar, alleging therein that the said respondent had obtained an order in terms of Section 202, Cr. P.C. directing the petitioner to hold enquiry under law but he demanded Rs. 900/- for doing the job. This respondent further alleged that he paid the said amount in two instalments of Rs. 400/-and Rs. 500/- to the petitioner but despite taking the said bribe, the petitioner did not conduct the enquiry.

3. The petitioner has further contended that on the basis of the complaint, preliminary investigation against him was conducted by the Dy.S.P. Anti-Corruption Organisation, Kashmir, who held the case not proved against him. This report was not accepted by the Commission which suo motu called for the record of the case and the petitioner was charge-sheeted on 12-7-1974. He pleaded not guilty to the said charge whereupon the prosecution was asked to lead evidence. Both the sides then led evidence. During the course of these proceedings, the J&K; Govt. Servants Prevention of Corruption (Commission) Act, 1962 was substituted by the J&K; Govt. Servants Prevention of Corruption Act, 1975 and the case was transferred to the single Member Tribunal (Dist. & Sessions Judge, Srinagar). This tribunal initiated fresh proceedings and he was served with articles of charges. He was, however, not given opportunity of being heard before framing of such charges against him. He was also not provided with the copies of the documents and the statements of the witnesses which were sought to be relied upon by the prosecution against him at that stage or at any stage subsequent to it. He, however, again pleaded not guilty to the charge and the prosecution was directed to lead evidence. The prosecution produced respondent 5 complainant and two witnesses Mohd. Qasim and Mohd. Amin Butt. While respondent 5 did not support the articles of charge, in his statement, the other two witnesses were declared hostile by the prosecution as they did not support the articles of charge or the statement of respondent 5. The prosecution also did not produce the other two witnesses, namely, Ghulam Mustaffa and Ghulam Rasool Butt. The single Member Tribunal respondent 2, vide order dt. 1-8-1980, found him guilty and recommended that the amount of gratification received by the petitioner be recovered from his pay and he be demoted to next lower rank for a period of three years. The enquiry proceedings had, in the meantime, been transferred from the single Member Tribunal (Distt. & Sessions Judge) to the newly appointed single Member Tribunal, Anti-Corruption (Non-gazetted), Srinagar. Subsequently vide notice dt. 28-11-1980, he was informed that on the basis of the enquiry and report made by respondent 2, the Governor had arrived at a provisional conclusion that the petitioner be demoted to the next lower rank for a period of three years and that an amount of Rs. 900/- be recovered from his pay. He was called upon to show cause as to why the said punishment be not imposed upon him. He submitted his explanation to the said show cause notice wherein apart from the other grounds he pleaded that the enquiry conducted by respondent 2 was defective and the conclusion arrived at by the said Tribunal was based on no evidence. The Governor then issued order No. 32-GR (supra) imposing punishment on him thereby demoting him to the next lower rank for a period of three years and also recovery of Rs. 900/- from his pay. According to the petitioner, the conduct of the complainant had been inconsistent from the very beginning and he made different versions before the Anti-Corruption Organisation. The version of the complainant was not supported by any evidence on the record and the Tribunal has been unduly biased in the case and influenced by the consideration of eradication of corruption. He was punished on the sole testimony of the complainant.

4. Under Secretary to Govt. Home Department (Vigilance) has filed counter-af fidavit on behalf of respondents 1 to 4 stating therein that the complaint was lodged against the petitioner by respondent 5 which was sent to Dy.l.G.Police, Anti-Corruption Organisation, Srinagar, for investigation and report. The petitioner appeared before the Commission and pleaded not guilty to the charges. During the course of proceedings, J&K; Govt. Servants Prevention of Corruption Act, 1975 came into force and in view of this position, respondent 2 cancelled the earlier charge and summoned the petitioner afresh when he was again charge-sheeted and afforded opportunity of being heard. The prosecution examined certain witnesses and respondent 2 after hearing both the sides, came to the conclusion that the amount of gratification received by the petitioner from respondent 5 be recovered from his pay and refunded to the complainant-respondent 5 and further recommended demotion of the petitioner to the next lower rank for a period of three years. This recommendation, after considering the objections of the petitioner, was accepted and the impugned order was issued. It is further submitted in the counter that the High Court in writ jurisdiction has no appellate powers and cannot, therefore, go into the matters of fact. The principles of natural justice have fully been complied with in the proceedings.

5. I have heard learned Counsel for the parties. Learned Counsel appearing for the petitioner has argued that the conduct of the complainant-respondent 5 had been inconsistent from the very beginning of the case and he made different versions before various forums and, more so, his statement was not corroborated by any evidence on record and in absence of any evidence connecting the petitioner with the commission of the offence, the single Member Tribunal, was not justified in punishing the petitioner. He has further urged that the Tribunal was biased in the case and influenced by the consideration of eradication of corruption which was not of its business and the Tribunal being a quasi-judicial authority, acting under a statute, was under an inherent duty to act fairly in accordance with the principles of natural justice and in doing so to comply with the principles of law of evidence. In support of his contention he has referred to authorities reported as: : 1979CriLJ936 . Learned Chief Govt. Advocate on the other hand, has contended that the single Member Tribunal has conducted the enquiry in accordance with the well established procedure and afforded reasonable opportunity to the petitioner of being heard and after hearing both the sides came to a certain conclusion which could not be agitated in a writ petition as the High Court in such matters could not go into the question of facts. I have considered these respective contentions raised by either side.

6. Their Lordships of the Supreme Court in : 1979CriLJ936 (supra) have held that the complainant in a bribery case has no better position than accomplice and his statement required to be corroborated in material particulars. In the latter authority 1974 JKLR 363 (supra), this Court held:

It is true that adequacy or reliability of the evidence relied upon by a competent Tribunal in a Departmental Enquiry cannot be canvassed before the High Court in writ proceedings under Article 226 of the Constitution of India or Section 103 of the State Constitution, and the enquiry held by an Administrative Tribunal is not governed by the strict and technical rules of the Evidence Act, but it is equally well settled that the High Court can in writ proceedings interfere where the impugned findings recorded by the Tribunal are not supported by any legal evidence, or where the conclusion of the tribunal on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. In Syed Yaqoob v. K.S. Radhakrishnan : [1964]5SCR64 , it was held that if a.finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. It was further held therein that a writ of certiorari can also be issued by the High Court if it is shown that in recording an impugned finding the Tribunal had erroneously admitted inadmissible evidence which influenced the finding.

XX XXX XX XX XX XXThe important question that is posed for decision is whether there was legal evidence before the Commission on which it could act and return a verdict of guilt against the appellant. There is, however, no dispute with regard to the proposition that the powers of this Court in such matters are limited. This Court while exercising its extraordinary powers in writ jurisdiction cannot re-appraise or re-appreciate the evidence led before a domestic Tribunal, nor while doing so can substitute its own judgment for the judgment of the said Tribunal. The question of re-evaluation and appreciating of the evidence can be agitated and considered in appeal. But at the same time as has been laid down by a catena of authorities of the Supreme Court and High Courts of India citations whereof have been given in the judgments of the two learned Judges, the High Court will not refuse to interfere in a case and will undoubtedly interfere in all such cases where it is found that the Commission has acted on no legal evidence or inadmissible evidence, or where the departmental authority has held the proceedings in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the inference drawn from the material on record by the domestic Tribunal is so arbitrary and capricious or perverse that no reasonable person can arrive at that conclusion. In some of the recent decisions of the Supreme Court vide : (1971)IILLJ407SC it has been held (in the former authority) that the application of the principle of natural justice does not imply that what is not in evidence can be acted upon. On the other hand what it means is that no material should be acted upon to establish a contested fact which is not spoken to by person competent to speak about that and is not subjected to cross-examination by the party against whom it is sought to be used....

The facts of the present case reveal that Ghulam Hassan Sultan respondent 5, made a complaint against the petitioner before the Chairman, Anti-Corruption, Commission, Srinagar, for the petitioner having obtained Rs. 900/- as bribe from him for making enquiry in a case referred to the petitioner under Section 202, Cr. P. C. by a Court. The Anti-Corruption Commission sent the complaint to the Dy. I. G. Police, Anti-Corruption Organisation, who, after making enquiry came to the conclusion that no case was proved against the petitioner. The Commission, however, did not accept the report of the Anti-Corruption Organisation and charged the petitioner for having allegedly received the bribe amount from respondent 5. During the course of proceedings conducted before the Anti-Corruption Commission, the J. & K. Govt. Servants Prevention of Corruption (Commission) (sic) Act, 1975 came into force and the case was sent to the single Member Tribunal for disposal. This single Member Tribunal framed fresh charge against the petitioner and the prosecution besides the complainant examined two witnesses, Mohd. Qasim and Mohd. Amin Butt. The complainant, respondent 5 supported his complaint while the other two witnesses did not support him. The single Member Tribunal relying upon the statement of the complainant recommended for recovering the amount of gratification from the petitioner's pay and also his demotion to the next lower rank for a period of three years. The single Member Tribunal has, in his report, held as under:

It is unfortunate that PWs Mohd. Amin and Mohd. Qasim who possess soft moral fibre, have been tempted away to rescue the accused official. They have also rendered themselves liable for a penal action for perjury by making false and contradictory statements at different stages of this enquiry. Their having been declared hostile does not change the situation or the gravity of the offence in the least.

In view of the unprecedented expansion of corruption in our society and on compelling demands from the public for arresting this evil from the public life, the Courts have now adopted a more rational and liberal view and once they find a person before them who raises his voice against corruption he is believed if he is found trustworthy and there is no need to seek any further corroboration. After excluding the irresponsible and the irrelevant conduct of PWs Mohd. Qasim and Mohd. Amin, the tribunal is of the opinion that the statement of complainant Mohd. Sultan is quite credible and natural and proves the case against the accused beyond any reasonable shadow of doubt. The accused has not been able to offer any plausible explanation and the charge of receiving gratification from the complainant stands proved against him.

It is clear from the finding of the Tribunal that he based his finding on the solitary statement of the complainant-respondent 5. The Tribunal was also tempted by the views of the public for eradicating the evil of corruption from the society. It cannot be denied that reliance placed by a competent Tribunal in a departmental enquiry cannot be canvassed or questioned in a writ proceeding under Article 226 of the Constitution or Section 103 of the Constitution of Jammu and Kashmir, but at the same time it is now well-settled that the High Court in its writ jurisdiction can interfere with the findings arrived at by the Tribunals when such findings are not supported by any legal evidence or where the conclusion arrived at by the said tribunal on the face of it, is arbitrary and capricious. This Court cannot re-appraise or re-appreciate the evidence led before the tribunal but the High Court cannot in any manner, refuse to interfere in a case where the Tribunal or the Commission has acted on no legal evidence. It is also now well-settled that the complainant in a bribery case is in no better position than accomplice and his statement cannot be believed unless corroborated by some other evidence. In the instant case, there was no evidence before the Tribunal except the solitary statement of the complainant. The Tribunal believed his statement and made recommendations for imposing punishment on the petitioner. This finding of the Tribunal being against the basic concept of law and legal evidence, cannot be sustained. The Tribunal it seems, had been completely biased in the case and was influenced by the consideration of eradication of corruption from the society. The Tribunal is admittedly, a quasi-judicial authority acting under a statute and it has an inherent duty cast upon it to act fairly and to comply with the principles of natural justice and law of evidence. Said principle has completely been ignored by the Tribunal in the present case.

7. In the result, the petition is allowed and the enquiry held by single Member Tribunal, respondent 2, is quashed. Consequently, the impugned order No. 32-GR of 1982, D/- 12-10-1982 imposing penalty on the petitioner is set aside. There will, however, be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //