Jawahar
Lal Wali Vs. State of Jammu and Kashmir & Ors [1993] INSC 123 (5 March 1993)
Venkatachala
N. (J) Venkatachala N. (J) Jeevan Reddy, B.P. (J)
CITATION:
1993 SCR (2) 218 1993 SCC (2) 381 JT 1993 (2) 183 1993 SCALE (1)789
ACT:
Jammu
& Kashmir Government Servants'Prevention of Corruption Act, 1975 : Section
4(d)--Charge under--Officer to pay the value of ice-making plant of 70 kg. capacity
and installation charges--Officer making payment accepting supply of 35 kg.
Capacity of plant--Whether corruption--Plea of bonafide belief whether could be
established without examining himself in enquiry--Exoneration of another
officer of similar charge of corruption--Effect Of.
HEAD NOTE:
The
Director of the Animal Husbandry Department in the State of Jammu and Kashmir wanted ice-making plants of 70 kgs.
capacity complete with motor for its Central Artificial Breeding Stations. On
9.3.1968 a notification was issued inviting quotations. M/s. Ashoka Brothers
responded to the notification. As it quoted the lowest rate, the Director
accepted its quotation after obtaining necessary approval from the departmental
committee set up for the purpose. The firm also was communicated the acceptance
of its quotation.
The
Director also informed The Officers-in-Charge of the Central Artificial
Breeding Stations of the acceptance of the quotation of the firm and authorised
each of them to place the necessary order for supply of one such plant, to
accept supply and to make payment of Rs. 8,600 the value of the plant and Rs.
450 its installation charges, on obtaining satisfaction that the plant so
supplied was of the desired make and specifications.
The
appellant placed an order with the firm and on 17.1.1969, the supply was
accepted and passed for payment the bill of costs relating to the plant subject
to retention of Rs. 1,556.72 ps. towards guarantee of proper performance of the
plant.
The
Anti-Corruption department investigated into a complaint against the appellant
and it discovered that the appellant had accepted an ice-making plant from the
firm of 35 kgs capacity as against 70 kgs. capacity plant paying the price of
the latter.
219
The appellant was charged for corruption under clause(d) of Section 4 of the
Jammu & Kashmir Government Servant's Prevention of Corruption Act, 1975 by
the Anti-Corruption Tribunal and an explanation was sought from him.
The
appellant filed a written statement denying the charge levelled against him. He
took the plea that he being a non- technical man accepted supply of 35 kgs. capacity
ice-making plant from the firm under bona fide belief that it had to be
regarded as 70 kgs. capacity ice-making plant because of its capacity to
produce 70 kgs. ice, if put to use twice a day.
At the
inquiry appellant supported his plea by examining two witnesses, one from the
firm and another from the Cold Storage Division of the Agro-Industries
Development of the State. However, he did not examine himself to establish the
truth of his bona fide belief set out in his defence plea.
The
Anti-Corruption Tribunal finding the appellant guilty of the change recommended
to the Governor of the State for imposition of a penalty there for of demotion
of the appellant from the post held by him to the next lower time- scale of pay
for a period of five years.
The
appellant in a writ petition under Article 226 challenged the order of the
Anti-Corruption Tribunal in the High Court, which was dismissed in limine.
Hence
this present appeal before this Court by special leave.
The
appellant contended that the Anti-Corruption Tribunal was wholly unjustified in
finding the appellant guilty of the charge of corruption, while another officer
who accepted supply of the same type of plant from the same firm supplied on
the basis of the same quotation and paid for it, was exonerated of the similar
charge of corruption.
Dismissing
the appeal, this Court,
HELD:
1.01.
The appellant was an officer who was required to accept supply of 'Ice-making
plant of 70 Kgs. capacity with one motor', after obtaining satisfaction that
the plant supplied was the desired plant and was according to the
specifications. But, the very explanation given by the appellant in defence of
the charge makes it evident that he accepted the 220 supply of making plant
knowing it to be of 35 Kgs. capacity and not of 70 Kgs. capacity. Such
conclusion is Inescapable because of the fact of non--denial by the appellant
in his explanation that the Ice-plant applied and accepted was not of 35 Kgs.
capacity. [224C-D]
1.02.
The plea of the appellant being that he accepted the 35 Kgs. plant because of
Its capacity to produce 70 Kgs. ice if put to use twice In a day, goes against
his accepting supply under the bonafide belief that it was a plant of the
capacity of 70 Kgs. Whatever might have been spoken by his witnesses with
regard to the production in a day by 35 Kgs. capacity plant, it cannot be a
substitute for what should have been spoken by him as the belief entertained by
him in accepting a lower capacity plant for higher capacity plant. [224E-F]
1.03.
In the instant case, unfortunately, nothing can be said to have been
established as to the bona fide belief entertained by the appellant at the time
of accept* supply of Ice plant as to its capacity, for, he had not chosen to
enter the witness-box to speak about such belief. In the circumstances, it
cannot be held that the And-Corruption Tribunal was, in any way, unjustified in
disregarding the plea put-forth by the appellant by way of the defence of the
charge of corruption levelled against him and recommending to the Governor, the
imposition of penalty of demotion on the charge of which he was found guilty.
[224G-H, 225A]
1.04.
The Enquiry Officer, if had found that another Officer who had received similar
supply, could not be found responsible for the insertion of certain words made
by a clerk in the office of the Director, and had exonerated the Officer
concerned of the charge levelled against him on an improper appreciation of the
material on record, the same cannot form the basis for exoneration of the
appellant of similar charge levelled against him as urged by the appellant,
particularly when the material received by the Officer in the other inquiry to
exonerate the Officer concerned therein is not available in the instant case.
[223H, 224A-B]
CIVIL
APPELLATE JURISDICTION : Civil Appeal No. 2791 of 1980.
From
the Judgment and Order dated 143.79 of the Jammu & Kashmir High Court in
W.P. No. 49 of 1979.
221
Ms. Alpana Podar and Kailash Vasdev for the Appellant.
Ashok Mathur
for the Respondents.
The
Judgment of the Court was delivered by VENKATACHALA, J. This Civil Appeal by
Special Leave is preferred by an officer of the Government of Jammu &
Kashmir questioning an order dated 14.3.1979 of the High Court of Jammu &
Kashmir dismissing in limine his Writ Petition No.
49 of
1979, in which he had impugned the Order dated 6.1.1978 of the Anti-Corruption
Tribunal finding him guilty of corruption under the Jammu & Kashmir
Government Severants' Prevention of Corruption Act, 1975, hereinafter referred
to as 'the Prevention of Corruption Act', and recommending to the Governor of
the State of Jammu & Kashmir imposition of penalty of demotion in his post
to the next below lower time-scale of pay for a period of five years.
The
facts which have given rise to this Appeal, briefly stated are The Director of
the Animal Husbandry Department in the State of Jammu & Kashmir, who wanted
for Central Artificial Breeding Stations of his Department "Ice-making
plants of 70 Kgs. capacity complete with motor", issued a notification on 9th August, 1968 inviting quotations therefor from
the intending suppliers. M/s. Ashoka Brothers is a firm which responded to that
notification by quoting the lowest rate for supply of such plants needed by the
Department. The Director accepted that quotation after obtaining necessary
approval therefor from a departmental committee set-up for the purpose and
communicated such acceptance to the said firm. He, thereafter, informed the
Officers-in-Charge of the Central Artificial Breeding Stations of both Srinagar
and Jammu of the acceptance of the quotation from the firm M/s. Ashoka Brothers
for supply of "Ice-making plant of 70 Kgs. capacity complete with
motor" and authorised each of them to place the necessary order for supply
of one such plant and accept supply and make payment there for on obtaining
satisfaction that the plant so supplied was of the desired make and
specifications by indicating that the amount to be paid therefor was Rs.8,600
being the value of the plant, and Rs. 450 being charges of installation of the
plant. The appellant, who accordingly placed an order with the firm M/s Ashoka
Brothers for supply of the Plant covered by the quotation, accepted such supply
from the firm on 17th January, 1969 and passed for payment the bill of costs
relating to the plant subject to retention of Rs. 1,556.72 ps. towards
guarantee of 222 proper performance of the plant. Subsequently, the Department
of Anti-Corruption of the State of Jammu & Kashmir, which investigated into
a complaint against the Officer-in-Charge of the Central Artificial Breeding
Station, Srinagar, discovered that that Officer had
obtained supply of an Ice-making plant from the same firm, the aforesaid
quotation of which had been accepted, of 35 Kgs.
capacity
Ice-making plant as against 70 Kgs. capacity plant required to be supplied, and
had paid the price of the latter. The said discovery, it is said, led the Anti-
Corruption Tribunal to investigate the actual capacity of the Ice-making plant
the supply of which had been obtained by the appellant for his Station from the
said firm on the basis of the self-same quotation, having paid for 70 Kgs.
capacity plant. That investigation, since disclosed that the appellant had
received a 35 Kgs. capacity Ice-making plant instead of 70 Kgs. capacity
Ice-making plant and paid for the latter, a charge of corruption under clause
(d) of Section 4 of the Prevention of Corruption Act came to be levelled
against the appellant by the Anti-Corruption Tribunal and an explanation had
come to be sought for therefore in that regard from him. The appellant, who
denied the said charge levelled against him by filing a written statement
thereto, sought to defend his action of accepting supply of 35Kgs. capacity
Ice-making plant instead of 70 Kgs. capacity Ice-making plant from the firm and
making payment for 70 Kgs. capacity Ice-making plant, by putting forward a plea
therein that he, being a non- technical man, accepted supply of 35 Kgs.
capacity Ice- making plant from the firm under the bona fide belief that it had
to be regarded as 70 Kgs. capacity Ice-making plant because of its capacity to
produce 70 Kgs. ice, if put to use twice in a day. He sought to support that
plea at the inquiry by examining two 'witnesses one from the firm which had
supplied the plant and another from the Cold Storage Division of Jammu &
Kashmir State Agro Industries Development. However, the appellant did not enter
the witness-box to establish the truth of his bonafide belief set out in his defence
plea.
By its
order dated 6.1.1978, the Anti-Corruption Tribunal which refused to accept the defence
plea of the appellant against the aforesaid charge levelled against him under
clause (d) of Section 4 of the Prevention of Corruption Act, found him guilty
of the charge, and recommended to the Governor of the State of Jammu &
Kashmir for imposition of a penalty therefor of demotion of the appellant from
the post held by him to the next lower time-scale of pay for a period of five
years. The said order of the Anti-Corruption Tribunal was impugned by the
appellant before the High 223 Court of Jammu & Kashmir in a Writ Petition
filed by him.
But,
that Writ Petition being dismissed in limine by the High court on 14th March, 1979, a Special Leave Petition being
filed by him in the matter before this Court, this Civil Appeal has arisen for
our decision after grant of Special Leave.
Shri
M.L Verma, learned Senior counsel appearing for the appellant, contended that
the Anti-Corruption Tribunal was wholly unjustified in finding the appellant
guilty of the charge of corruption under clause (d) of Section 4 of the
Prevention of Corruption Act for obtaining supply of Ice- making plant for the
Central Artificial Breeding Station of Jammu of 35 Kgs. capacity against 70 Kgs.
capacity, while another Officer who had accepted supply of the same type of
plant from the same firm supplied on the basis of the said same quotation and
paid for it, had been exonerated of the similar charge of corruption. It is
true that another Officer against whom similar charge had been levelled was
exonerated of that charge on appreciation of evidence which had come on record
in the course of inquiry held against him, as was pointed out by the learned
counsel. What that Officer (Dr. D.N. Pandita) is said to have done after
obtaining supply of the Ice-making plant on 24th March, 1969 from the said firm
and making 90 per cant payment out of the amount of Rs. 12,773.20 ps. payable
to the firm, cannot but be regarded as an intrigue. When he received a letter
dated 25th August, 1969, from the firm for releasing to it the balance amount
of 10 per cent of the cost of Ice-making plant he is said to have, in turn,
written another letter to the Director indicating that the plant had the
capacity to produce 70 Kgs. ice in two installments of 24 hours and sought
clarification and guidance whether the supply was to be treated as one supplied
according to the specifications and the balance amount retained could be
released in favour of the firm. That letter, although is seen to have been
written on 28th August,
1969, is returned on
the same date with an endorsement : "Returned. The specifications
indicated in the approved rate list are clear. There is no need for further
elucidation. The plant should have the capacity to produce 70 Kgs. of Ice per
day............. This endorsement signed for the Director by Dr. Mohd. Ramzan,
although, was made use of by the Officer for making balance payment to the
firm, Dr. Mohd. Ramzan stated in that inquiry that the words 'per day' in the
endorsement had been inserted by his clerk, Shri Pawalal, subsequent to the
signing of that endorsement by him. The Enquiry Officer, if had found that the
Officer who had received the supply could not be found responsible for the
insertion of certain words made by a clerk in the office of the 224 Director, and
exonerated the Officer concerned of the charged levelled against him on an
improper appreciation of the material on record, the same cannot form the basis
for exoneration of the appellant of similar charge levelled against him as
urged by the learned counsel for the appel- lant, particularly when the
material received by the Officer in the other inquiry to exonerate the Officer
concerned therein is not available in the instant case.
Besides,
the appellant, in the instant case, it was not disputed, was an Officer who was
required to accept supply of 'Ice-making plant of 70 Kgs. capacity with one
motor', after obtaining satisfaction that the plant supplied was the desired
plant and was according to the specifications. But, the very explanation given
by the appellant in defence of the charge makes it evident that he accepted the
supply of Ice-making plant knowing it to be of 35 Kgs. capacity and not of 70 Kgs.
capacity. Such conclusion is inescapable because of the fact of non-denial by
the appellant in his explanation that the Ice plant suppled and accepted was
not of 35 Kgs. capacity. What he has said in the explanation was that the Ice
plant, the supply of which he accepted, was capable of producing 70 Kgs. ice,
if put to use two times a day, and, therefore, he cannot be held guilty of
accepting a plant of 35 Kgs. capacity. It could have been something different,
if the appellant's plea was, as suggested by the learned counsel that the
appellant did not know at the/ time of obtaining supply that it was of 35 Kgs.
capacity plant and not of 70 Kgs. capacity plant but accepted its supply under
a bonafide belief that it was of 70 Kgs. capacity.
But,
the plea of the appellant being that he accepted the 35 Kgs. plant because of
its capacity to produce 70 Kgs. ice if put to use twice in a day, goes against
his acception supply under the bonafide belief that it was a plant of the
capacity of 70 Kgs. Whatever might have been spoken by his witnesses with
regard to the production in a day by 35 Kgs. capacity plant, it cannot be a
substitute for what should have been spoken by him as the belief entertained by
him in accepting a lower capacity plant for higher capacity plant.
In the
instant case,. unfortunately, nothing can be said to have been established as
to the bonafide belief entertained by the appellant at the time of accepting
supply of Ice plant as to its capacity, for, he had not chosen to enter the witnessbox
to speak about such belief. In the circumstances, it is difficult for us to
think that the Anti-Corruption Tribunal was, in any way, unjustified in
disregarding the plea put-forth by the appellant by way of the defence of the
charge of corruption levelled against him and recommending to the 225 Governor
the imposition of a penalty of demotion on the charge of which he was found
guilty. In this view of the matter, there can be no good reason for us to hold
that the High Court, again was unjustified in rejecting the appellant's Writ
Petition in which he had impugned the order of the Anti-Corruption Tribunal.
For
the foregoing reasons, this Civil Appeal has to fail and it is, accordingly,
dismissed. However, in the facts and circumstances of the case, we make no
order as to costs.
V.P.R.
Appeal dismissed.
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