MALLIAH v. STATE OF KARNATAKA — 1977 DIGILAW 15 (KAR)

( 1 ) IN this writ petition under Arts. 226 and 227 of the Constitution of india, the petitioner has sought for the issue of a writ of certiorari quashing the entire proceedings ending with the dismissal order marked at ext. 'f'. ( 2 ) THIS writ petition and another writ petition viz. , WP. No. 1920 of 1976 were posted together for hearing on the ground that they gave rise to common questions of law in so far as it relates to the constitutionality of act No. 28 of 1969. ( 3 ) THE contentions in WP. No. 1920 of 1976 mainly rests upon the Constitutionality of the Act. It is therefore separated from this case and to be heard separately. ( 4 ) IN WP. No. 7017 of 1876, ft does not appear to be necessary to decide the contention relating to the Constitutionality of the Act No. 28 of 1969 as this writ petition can be disposed of on merits. ( 5 ) FACTS, briefly stated are: That PW. 1 Kannan, was working as a room-boy in the legislators home. He made an application to the Corporation for transfer of Khata in respect of certain land. He approached the petitioners who was working as a revenue inspector. The allegation against the petitioner is that after recommending for change of Khata, he in order to secure the signature of a superior officer demanded in the first instance rs. 300 as bribe which was scaled down to Rs. 200. Kanan paid Rs. 50 in the first instance on 23-7-1974. Further the allegation is that the petitioner asked Kannan to bring the remaining amount of Rs. 150 on the next day. Kannan approached PW. 8 Keshava Murthy an official in the Legislators home, who took Kannsn to the Vigilance Commissioner's Office. Kannan gave a complaint to PW. 9 the Deputy Superintendent of Police. PW. 9 recorded the complaint of Kannan on 25-7-1974. He secured panchayatdars and conduced the usual demonstration test for trap on the currency notes of Rs. 150 after smearing the same with phenolphthalein powder and explained the effect of the powder over sodium bicaronate solution. A mahazar to that effect was drawn as per Ex. P-5. He instructed PW. PW. 9 recorded the complaint of Kannan on 25-7-1974. He secured panchayatdars and conduced the usual demonstration test for trap on the currency notes of Rs. 150 after smearing the same with phenolphthalein powder and explained the effect of the powder over sodium bicaronate solution. A mahazar to that effect was drawn as per Ex. P-5. He instructed PW. 1 kannan to give the currency notes if the petitioner demanded and touched them, and thereafter give a signal by rubbing his face for the trap party to come and trap the petitioner. Kannan went to the office of the petitioner. ( 6 ) HE found some persons present there. He was asked by the petitioner to sit on a bench and thereafter the case of the department is that the petitioner took Kannan outside the corridor and he asked Kannan to place the currency notes in a paper and put it into the file. He did accordingly. PW. 1 Kannan thereafter gave signal to the Vigilance party, who came and asked the petitioner to remove from the file and produce those currency notes which were smeared with phenolphthalein powder. Thereafter, a mahazar as per Ext. P-6 was drawn and a departmental enquiry wps ordered. The Departmental enquiry was conducted by the Deputy director of Vigilance. Nine witnesses were examined by the Enquiry officer. Of them PWs. 8 and 9 are important witnesses. ( 7 ) THE Enquiry officer upon consideration of the evidence produced by the department, held that three charges framed against the petitioner were established and answered the charges in the affirmative. This report was sent to the Vigilance Commr. The Vigilance Commr after review of the evidence on record agreed with the finding of the Enquiry Officer, and recommended imposition of the major penalty of dismissal. The 1st Respt on receipt of the Vigilance Commr's report, observed the usual procedure and referred its recommendation for the opinion of the Public Service commission which examined the case in detail and recommended that the petitioner has to be compulsorily retired from service. Thereafter the 1st respondent by its order No. HMA 132 MNU 74 dated 20-8-1974 CExt. 'f') dismissed the petitioner from service with immediate effect. The petitioner has challenged the dismissal order before this Court. Thereafter the 1st respondent by its order No. HMA 132 MNU 74 dated 20-8-1974 CExt. 'f') dismissed the petitioner from service with immediate effect. The petitioner has challenged the dismissal order before this Court. ( 8 ) BEFORE considering the case on merits it is necessary to determine the principle of law laid down by the Supreme Court as to the limits within which this Court can legitimately issue a writ of certiorari, in Union of India v. H. C. Goal, AIR. 1964 SC. 364 Gajendragadkar, J. (as he the was) observed in paragraph 20 of the judgment thus :"in dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt wi. h so as to attract Art. 311 (2), the High Court under Art. 226 has jurisdiction to enquire whether the concluion cf the Govt on which the impugned order of dismissal rests is not supported by any evidence at all. it is true that the order of dismissal which may be passed against a Govt servant found guilty of in sconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi judicial proceedings and there can be little doubt that a writ of certiorari, for instance can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Govt in the said proceedings, which is the basis of his dismissal, is based on no evidence. . . . . . " ( 9 ) FURTHER in State of Andhra Pradesh v. Chitra Venkata Rao, AIR. 1975 SC. 2151 the supreme Court while dealing with a departmental enquiry case observed thus :"in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domeslic tribunal of inquiry the High Court in a petition under Art. 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. If that rule be not applied by a domeslic tribunal of inquiry the High Court in a petition under Art. 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Art. 226 over the decision of the authorities holding a departmental enauiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justuice are no violated. Secondly, where there is some evidence which the authority entrusted wi'h the duty to hold the enquiry has accepted and which evidence may reasonably support, the conclusion that the delinquent officer is guilty of the charge, it is not the function of the high Court to review the evidence and to arrive at an independent finding on the evidence. . . . . . . . . . . An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact however, grave it may appear to be. In regard to a finding of fact recorded by a Tribunal a writ can be issued if it is shown that in recording the said finding the Tribunal has erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced, the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error rf law which can be corrected by a writ of certiorari. ( 10 ) A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustsin a finding The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal''. ( 11 ) IN the light of the principle of law enunciated by the Supreme Court, let me consider the merits of this case to find out whether it calls for issue of a writ of certiorari for quashing the impugned order. Mr. ( 11 ) IN the light of the principle of law enunciated by the Supreme Court, let me consider the merits of this case to find out whether it calls for issue of a writ of certiorari for quashing the impugned order. Mr. Ethirajulu Naidu, learntd advocate nor the petitioner, firstly, contended that the case disclosed by the evidence produced by the department is not a case of acceptance of bribe, but it was a case ot refusal to accept bribe. He reued upon the evidence or P. W. 1rannan who his stated in the examination-in-chief that he forcibly placed the currency notes into the right hand of the petiioner and thus, it is a case of no evidence to support the finding of acceptance cf bribe by the petitioner. Alternatively, he contended that the evidence on record does not reasonably support the conclusion that the peti. ioner is guilty of the charges levelled against him. Secondly, he contended that the enquiry officer has failed to take into consideration the surrounding circumstances which gave access to PW. 1 to plant the notes in one of the files which were on the table of the petitioner in the Corporation Office. Thirdly, he, contended that in the instant case the trap was a failure and it was not conduc ed in the manner stated in Ext. P5, which was a mahazar drawn in the office of the Vigilance Commissioner. Fourthly, he contended that PWs. 1 and 8 fabricated the entire plan to get the petitioner trapped to wreak vengeance upon the petitioner, who had on an earlier occasion got an application for change of Khata filed by one Gangappa another room-boy of the Legislators Home rejected. ( 12 ) THE learned Govt Advocate contended that it is not a case of no evidence. Inadequacy and insufficiency of evidence is no ground to interefere with the impugned order. He urged that out of the three charg s, if any one of them is proved, it is sufficient to sustain the impugned order. Further he contended that the enquiry officer who was a judicial officer has elaborately dealt with the evidence on record and was convinced about the truth of the evidence and, therefore, has given his findings and those findings, which are based upon evidence do not call lor quashing by the issue of a writ of certiorari. Further he contended that the enquiry officer who was a judicial officer has elaborately dealt with the evidence on record and was convinced about the truth of the evidence and, therefore, has given his findings and those findings, which are based upon evidence do not call lor quashing by the issue of a writ of certiorari. He further urged that Vigilance Commissioner, confirmed the findings after careful consideration of evidence on record and further the 1st respondent also by application of mind accepted the findings of the enquiry officer of the Vigilance Commission and has passed the impugned order of dismissal as per Ext. 'f'. The dismissal order, therefore, according to him does not call for interference. ( 13 ) THUS the petitioner's case that there is no evidence or some evidence which is on record does not reasonably support the conclusion that the petitioner is guilty of the charge, while the case for the respondent is that there is evidence or that some evidence whatever is on record supports the conclusion that the petitioner is guilty of the charges. Therefore, it is necessary to know the definition of the word 'evidence'. The definition of the word 'evidence' is adopted by Mr. Best thus:"the word evidence signifies in its original sense, the state of being evident i. e. , plain, apparent or notorious. But by an almost peculiar inflection of our language it is applied to that which tends to render evidence or generate proof. Evidence, thus understood, has been well defined as, any matter of fact, the effect, tendency or design of which, is to produce in the mind a persuasion, affirmative or disaffirmtive, of the existence of some other matter of fact. The fact sought to be proved is termed the principal fact; the fact which tends to establish is the evidentiary fact. " ( 14 ) IT is clear from what is quoted above that when some witnesses give oral statements, these statements must tend to render evidence or generate proof of the existence of a fact or its existence so probable that a prudent man should act upon the supposition that that fact exists. In the light of the definition of evidence, I will now proceed to consider the evidence produced by the Department in the enquiry against the petitioner. PW. In the light of the definition of evidence, I will now proceed to consider the evidence produced by the Department in the enquiry against the petitioner. PW. 1 Kannan in the course of his statement before the enquiry officer, in addition to whr. t he has deposed, has made the following statement. "as the Deputy Superintendent of Police informed me that i should give the amount to the hands of the AGO, I took the amount and forcibly placed it in the right hand of the AGO and therefter, i gave a signal to others by wiping my face with a kerchief as instructed earlier. The AGO after receiving the amount rushed to his office room. I did not observe as to whether he got MO. 1 the currency notes after I had given to him. " ( 15 ) FURTHER, he has stated with regard to the demonstration held for washing the hands as follows:" Thereafter the solution was prepared in two glasses and the ago was asked by the Dy. SP. and others to wash both his hands in the solution which he did. In one of the glasses, the solution turned into a pale red colour and the solution in the other glass did not turn into any colour. "of course, PW. 1 does not mention or refer to the particular hand. But in Ext. 'k' the mahazar drawn in the Office of the Revenue Inspector in para 5, he has stated thus: Keshava Murthy, PW. 8 in the course of his statement before the enquiry officer has slated thus ;" The AGO talked something to Kannan in a low tone and I could not hear what he told him as i was at a distance of about 3 or 4 yards behind him. The AGO gave a piece of paper to PW. 1 Kannan. After receiving that paper PW. 1 Kannan placed the currency notes in the fold of that paper and gave it to the AGO who received it. I actually saw this fact. " ( 16 ) WITH regard to the washing of the hands of the petitioner, he has stated thus:solution was prepared in two receptacles and the AGO was asked to wash the fingers of his hands separately in them which he did. I actually saw this fact. " ( 16 ) WITH regard to the washing of the hands of the petitioner, he has stated thus:solution was prepared in two receptacles and the AGO was asked to wash the fingers of his hands separately in them which he did. The solution which wad colourless before washing his fingers turned into a very pale pink colour when he washed the fingers of his left hand. I did not observe any colour in the solution in which he washed the fingers of his right hand. " ( 17 ) FROM the statements of PW. 1 and PW. 8 it is apparent that they have given patently untruthful evidence against the petitioner. They do not tend to render evidence or generate proof for establishing the charge of acceptance of bribe by the petitioner from PW. 1. Therefore, it is no evidence to support the 3rd charge. Now the question is whether the evidence of PWs. 1 and 8 quoted above, may reasonably support the conclusion that the AGO is guilty of the charge of acceptance oi bribe of Rs. 150 from PW. 1. PW. 1 Kannan categorically staled that he refused to keep the money in a paper when he was asked by the AGO to do so. PW. 8 states that kannan placed the currency notes in a paper and put it in the file. Further, pw. 1's evidence is that on the instructions of the Dysp he forcibly placed the currency notes into the hands of the petitioner. Thus on the showing of the department itself the petitioner refused to accept the money from PW. 1 Kannan. But the absence of the traces of phenolphthalem powder in the right hand is a clinching circumstance to show that even forcibly the money was not placed in the right hand of the peitioner. But the version of PW. 8 that the AGO (petitioner) gave a piece of paper to PW. 1 and after receiving the paper PW. 1 placed the notes in the fold of that paper and gave it to the AGO. who received it, which fact is actually false. ( 18 ) THE evidence of these two witnesses taken on their face value does not reasonably support the conclusion that the petitioner accepted the bribe from PW. 1. On the other hand, they have given false evidence to implicate the petitioner. who received it, which fact is actually false. ( 18 ) THE evidence of these two witnesses taken on their face value does not reasonably support the conclusion that the petitioner accepted the bribe from PW. 1. On the other hand, they have given false evidence to implicate the petitioner. Now, therefore, the plea of the petitioner in the course of the enquiry that PW. 8 Keshave Murthy and PW. 1 Kannan, fabricated the entire complaint against the petitioner and approached the Vigilance Commission to lay the trap on a false complaint in order to wreak vengeance against the petitioner who on a former occasion got the application for is Khata exchange, in which another room-boy by name Gangappa of Legislators' home was interested was rejected on the recommendation of the petitioner which is spoken to by DW. 2, receive support from the untruthful evidence given by the two witnesses and other surrounding circumstances. As comntended by Mr. Ethirajulu Naidu, PW. 1 Kannan, had an easy access to the table of the petitioner as there were number of persons in his office. There is evidence to show that there was rain on that day and many people rushed into the Corporation Office for shelter and they were moving about. Therefore, there was every opportunity for PW. l to plant the notes in one of the files on the table of the petitioner, which were later on recovered by the Deputy Superintendent of Police. ( 19 ) IT is true that the enquiry officer has elaborately quoted the evidence of all the witnesses almost verbatim. But the admission made by Kannan, that he forcibly placed the currency notes in the right hand of the petitioner has been conveniently ignored from consideration. Further, the enquiry officer while dealing with the absence of traces of phenolphthalein powder on the right hand of the petitioner has rejected it as irrelevant the rejection of the two admissible and material-pieces of evidence brings this case within the ratio of the principle of law laid down by the Supreme court in Union of India v. H. C. Goel (1) and State of Andhrd Pradesh V. Chitra Venkata Rao (2) further, this Court in W. P. 3698 of 1974 Vittoba Rao v. State, WP. 3698/74 dt. 29-10-1976. 3698/74 dt. 29-10-1976. while dealing more or less with a case of similar nature observed in para 13 thus:"whether it is in criminal proceeding or in the disciplinary proceeding the endeavour of the judge or the enquiry officer is to find out the truth. They are required to do this as impartial umpires. The nature of proof required as laid down by the Supreme Court in these two proceedings is cutterent. In the former the cnarge must be proved beyond reasonaule doubt but in the latter some evidence which may reasonably support the conclusion that the delinquent officer is guilty of the charge is required. It is true, insufficiency and inadequacy of evidence is no ground to interfere with the findings of any departmental enquiry. But all the same, the truth must be established even in disciplinary proceedings". ( 20 ) IT is unfortunate that the enquiry officer has refused to consider the admissible and material evidence as already seated above. He appears to have failed to ascertain the truth in the case by retusing to take take consideration the admissible and material evidence in the case. The enquiry officer is not justified in deciding disciplinary proceedings upon his own suspicions or on mere suppositions after discarding the evidence favourable to the petitioner. No finding can be given when there is no evidence to support it upon suspicion and supposition. Therefore, the evidence on" record does not reasonably support the finding in the 3rd charge which is inescapable. Nextly, the learned Govt Advocate contended that, even if it is held that there is no evidence to support the 3rd charge the other two charges namely the first and the second charges are proved by evidence on record and it any one of the two charges are held to be proved the impugned order requires to be sustained. The contention raised in this contention cannot be disputed. But the support for the finding on the 1st and the 2nd charges is sought on the evidence of PWs 1 and 8. When the evidence of pws 1 and 8 has failed to generate proof in respect of the 3rd charge it is not possible to say that their statement on the 1st and the 2nd cnarges tend to render evidence in support of the two charges as they are found to be untruthtul witnesses while dealing with the third stage. When the evidence of pws 1 and 8 has failed to generate proof in respect of the 3rd charge it is not possible to say that their statement on the 1st and the 2nd cnarges tend to render evidence in support of the two charges as they are found to be untruthtul witnesses while dealing with the third stage. 'the contention of Mr. G. R. Ethirajulu Naidu, is that PWand. 1 and 8 fabricated a false complaint in order to teach him a lesson by a relative of one Gangappa, who was a room-boy in the Legsilators Home. DW 1's evidence discloses that one Kariyappa and PW. 8 had met the petitioner on 24-7-1974 in connection with the application Ext. . 8' of lakshmana given by Gangappa for change of Khata had been rejected on the report of the petitioner. There is thus evidence to support that PW. 8 had become hostile towards the petitioner and it is reasonably probable that this so called 'public Spirited Person' had instigated PW. 1 and concocted the story of what took place before the date of trap. Further, if the petitioner had accepted part of the bribe on 23-7-1974 what circumstance compelled PW. 1 to forcibly place it in the right hand of the petitioner is not explained. Undoubtedly PW. 1 and PW. 8 had given a make believe story to land the petitioner in trouble which is really of a serious consequence and lwhilch has now deprived him of the joy by a dismissal order. ( 21 ) THE learned Advocates for the parties took me through the report of the Vigilance Commission. Even the Vigilance Commission has committed the same mistake. It has refused to consider the material and admissible evidence on record white affirming the finding of the enquiry officer. The 1st respondent, of course, has merely referred to the finding given by the enquiry officer and the recommendation made by the Vigilance Commr and held that both the authorities have carefully considered the evidence and reached the conclusion. It is, therefore, as contended by Mr. Ethirajulu naidu, for the petitioner, the findings recorded by the enquiry officer and affirmed by the Vigilance Commission are manifastly unreasonable and they cannot be sustained. In my opinion, this is a fit case in which this Court can legitimately exercise its discretionary powers vested under arts. It is, therefore, as contended by Mr. Ethirajulu naidu, for the petitioner, the findings recorded by the enquiry officer and affirmed by the Vigilance Commission are manifastly unreasonable and they cannot be sustained. In my opinion, this is a fit case in which this Court can legitimately exercise its discretionary powers vested under arts. 226 and 227 cf the Constitution to quash the entire proceedings from its inception. Accordingly the proceedings culminating in the issue of the dismissal order at Ext. 'f' is quashed. Further, the consequential order passed by the Corporation a't Ext. 'l' is also quashed. There shall be a writ of mandamus directing respondent-3 to take the petitioner on duty md give him all the consequential benefits, such as monetary or otherwise. In the result, writ petition is allowed. No costs. --- *** --- .