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2009 DIGILAW 424 (JK)

Farooq Ahmed v. State

2009-08-27

SUNIL HALI

body2009
1. While working as Private Secretary with the Commissioner of Vigilance, the petitioner is stated to have divulged vital and sensitive information to the suspects in Vigilance related cases. Petitioner also cautioned the accused to remove incriminating evidence pertaining to their cases. An enquiry was initiated against the petitioner, in which he is stated to have participated. The conclusion of the enquiry resulted in issuing warning to the petitioner and this warning was required to be placed in his ACR dossiers. 2. It seems that on re-consideration of the case of petitioner by the Government under Rule 53 of the Civil Service (Classification, Control and Appeal) Rules, 1956, fresh show cause notice dated 27-4-2006 was issued to the petitioner, in which it was proposed to impose major penalty on him instead of punishment of censure. It is this show cause notice, which is the subject matter of challenge in this petition. 3. The petitioner claims that issuance of aforesaid show cause notice under Rule 53 of the Civil Service (Classification, Control and Appeal) Rules, 1956, tantamounts in reviewing the punishment imposed by the competent authority vide its order dated 6-9-2005. The other contention raised by the petitioner is that consultation with the Public Service Commission in terms of section 133 sub clause 3C of the Constitution of Jammu and Kashmir could have been done prior to the imposition of punishment of censure on 6-9-2005 and not after the order was passed. No opportunity of being heard was given to the petitioner while issuing the impugned order. It is averred that major penalty of reduction in rank can only be invoked when Rules 33 and 34 of the Civil Service (Classification, Control and Appeal) Rules, 1956, have been strictly complied with. 4. On the other hand, stand of the respondents is that imposition of punishment was a lenient view taken, as allegations against the petitioner were of serious nature. It is stated that petitioner established a contact with one Junior Engineer namely Jaipal Sharma and divulged him the secret information regarding the complaint and advised him to remain cautious. Petitioner had also contacted with one Ashwani Kumar, AEE. UEED and accepted bribe from him. The said allegations were fully established after a full dressed enquiry. It is stated that petitioner established a contact with one Junior Engineer namely Jaipal Sharma and divulged him the secret information regarding the complaint and advised him to remain cautious. Petitioner had also contacted with one Ashwani Kumar, AEE. UEED and accepted bribe from him. The said allegations were fully established after a full dressed enquiry. It is further stated by the respondents that allegations leveled and proved against the petitioner being of extraordinarily serious nature, deserved imposition of a proportionate penalty upon the petitioner. It is stated that order of censure dated 6-9-2005 was required under rules to be issued after the approval of the Chief Minister. 5. I have heard the learned counsel for the parties. 6. After imposition of penalty under Rule 30 of the Civil Service (Classification, Control and Appeal) Rules, 1956, the Government has the power to confirm, modify or reverse the order passed by such authority. This power has been exercised by the respondents while issuing fresh show cause notice seeking to impose major penalty of reduction in rank. In order to appreciate this controversy, Rule-53 of the Civil Service (Classification, Control and Appeal) Rules, 1956, is reproduced as under : "Notwithstanding anything contained in these rules, the Government may, of its own or otherwise, call for the record of any case decided by an authority subordinate to it in exercise of any powers conferred on such authority by their rules, and : confirm, modify or reverse the order passed by such authority; or direct that a further inquiry be held in the case; or reduce or enhance the penalty imposed by the order; or make such other order in the case as it may deem fit; Provided that where it is proposed to enhance the penalty imposed by any such order, the Government servant concerned shall be given a opportunity of showing cause against the proposed enhancement : Provided further that the period of limitation for an application for revision on behalf of an aggrieved party shall be thirty days from the date of the communication of the order sought to be revised." 7. Plain language of the aforementioned rule reveals that the government may on its own or otherwise call for the record of the case and confirm or reverse the finding recorded by such authority while imposing the punishment. Plain language of the aforementioned rule reveals that the government may on its own or otherwise call for the record of the case and confirm or reverse the finding recorded by such authority while imposing the punishment. It may order fresh enquiry or make such other order as it deem fit and proper. The only exception provided is that while enhancing penalty imposed by such authority, the concerned official shall be given an opportunity of showing cause against the proposed enhancement. 8. Applying this provision in the present case, it will be clearly seen that on application made by the Vigilance Department and consultation sought from the Public Service Commission, the Government on consideration of the matter, has issued proposed show cause notice. Such an action is squarely contemplated by Rule 53 of the Civil Service (Classification, Control and Appeal) Rules, 1956, which empowers the government to take such action either on its own or otherwise. The word " otherwise" would mean that it is not necessarily that only an aggrieved party can seek such a remedy but it can be by any other authority or person. The object is to bring it into the notice of the government that the competent authority has not imposed the requisite punishment as was required in the facts and circumstances of the case. Underlining object is that a person who deserves severe punishment, should not go scot-free and for that necessary mechanism has been provided to inform the government in this aspect. 9. The contention of the petitioner that it tantamounts to review the order dated 6-9-2005, is misconceived. 10. Review is permissible only before an authority, who has imposed the punishment. It may be same authority, which proposes to take action under Rule 53 of the Civil Service (Classification, Control and Appeal) Rules, 1956. There is clear distinction between the review and revision. Power of review can be exercised only to correct an error apparent on the face of record and it does not mean correction of judgment or order. The power of revision is to correct a decision, if any illegality is found in it. The contention of the petitioner on this count is misconceived. 11. Power of review can be exercised only to correct an error apparent on the face of record and it does not mean correction of judgment or order. The power of revision is to correct a decision, if any illegality is found in it. The contention of the petitioner on this count is misconceived. 11. After holding that respondents are well within their right to issue show cause notice to the petitioner, it can safely be said that the present petition is pre-mature, as petitioner has come up against the show cause notice. The petitioner is well within his right to reply the said show cause notice and take all the necessary defences which were available to him under law. His contention that while ordering major penalty of reduction in rank, rules 33 and 34 of the Civil Service (Classification, Control and Appeal) Rules, 1956 have not been complied with can also be one of the grounds, which the petitioner can take in his reply. 12. Viewed thus, I find no merit in this petition, which is dismissed alongwith connected CMP, if any.