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PETITIONER: JAWAHAR LAL WALI

       Vs.

RESPONDENT: STATE OF JAMMU AND KASHMIR AND ORS.

DATE OF JUDGMENT05/03/1993

BENCH: VENKATACHALA N. (J) BENCH: 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.

HEADNOTE: 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

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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  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   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

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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]

JUDGMENT: 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

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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

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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

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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. 226