Mohan, C.J.
1. The short facts leading to the appeal are as follows:
The appellant was working as Assistant Public Prosecutor. Consequent to his appointment as such on 23-9-1969, he was posted to the Court of the Judicial Magistrate First Class at Manvi during the year 1975. On 11-12-1975 a trap case was laid. When the appellant was sitting in the Bar Association of Manvi, one person by name Narasappa came at 12-20 p.m. and paid money for the proper conduct of his father's case. At the time when the money was received by the appellant, the Anti-Corruption Officers caught the appellant and seized the currency notes. Those currency notes were subjected to phenolphthalein test, Panchanamas were drawn and the statement of the appellant was taken. As a result, it was concluded that the said Narasappa had approached the appellant and the appellant had taken Narasappa to the Bar Association of the Manvi Court where the appellant demanded Rs. 50/- for the conduct of the case effectively. The office of the Deputy Superintendent of Police, Bureau of Investigation, State Vigilance Commission, Gulbarga was declared as a Police Station. One Amaresh was the Deputy Superintendent of Police. It was he who headed the raiding party. He submitted the matter to D.B. Desai, Inspector of Vigilance at Raichur and he found that the appellant had to be proceeded with by way of disciplinary action. This opinion was forwarded to the State Vigilance Commissioner on 31-1-1976 recommending for initiating departmental enquiry. One Chandulal, Superintendent of Police attached to the State Vigilance Commission formed his opinion which was also accepted by the State Vigilance Commissioner who recommended to the State Government for holding a departmental enquiry under Rule 6(2) of the State Vigilance Commission Rules read with Rule 14A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as the C.C.A. Rules).
By an order dated 19-3-1976 the Vigilance Commissioner was directed by the State Government to hold departmental enquiry against the appellant on the allegation of accepting illegal gratification. On 9-4-1976 the Vigilance Commissioner appointed the Assistant Director of Vigilance (I) to hold an enquiry. The appellant was served with the article of charge on 5-5-1976 to the following effect:
'That you Mr. Shri B.S. Somashekaraiah, (A.G.O) while working as Assistant Public Prosecutor at Manvi, on 11-12-1975 at about 12 noon in the Bar Association Room of the J.M.F.C. Court, Manvi, demanded and accepted. an illegal gratification of Rs. 50/- from Sri Narasappa s/o Sri Hanumanthappa, Mudlapur village, Manvi Taluk, for properly conducting the criminal case C.C.No. 678/74 on the file of the J.M.F.C. Court, Manvi, in which case his father was a complainant and thus you are guilty of grave misconduct.'
This charge was denied. Whereupon, an enquiry took place. On the completion of the enquiry, on 9-2-1977 the State Vigilance Commissioner submitted his findings and recommended the imposition of penalty of dismissal of the appellant. On the report of the Enquiry Officer and on the recommendation of the Vigilance Commissioner, the State Government passed an order on 24-12-1977 to the following effect:
ORDER
'On a detailed consideration of evidence and the records of the case the Government of Karnataka find that there are no valid grounds to disagree with the Inquiry Officer and the Vigilance Commissioner, both regarding the findings and the proposed punishment, the imposition of the penalty of dismissal of the Accused Government Officer (Sri B.S. Somashekaraiah) from service. The charge framed against the Accused Government Officer (Sri B.S. Somashekaraiah) is proved.
2. In the circumstances, the Government of Karnataka hereby order the dismissal of the Accused Government Officer, Sri B.S. Somashekaraiah, from Government Service with immediate effect, and also order to treat the period of his suspension as such. By Order and in the name of the Governor of Karnataka,Sd/-Under Secretary to Government, Department of Law &Parliamentary; Affairs.'
As a result, the appellant was punished. It is against this order the appellant filed an appeal to the Governor of Karnataka under Rule 18(2) of the C.C.A. Rules. The appeal was rejected by the communication issued in favour of the appellant dated 6-7-1978. This order was challenged in W.P.No. 10302 of 1978. Our learned brother Justice Doddakale Gowda, by his Judgment dated 19-2-1986 dismissed the Writ Petition for the reasons stated in his Judgment. Hence the appeal.
2. Sri B.B. Mandappa, learned Counsel for the appellant, urges the following points for our consideration:
In the instant case no opinion has been formed by the Vigilance Commissioner to the effect that the appellant was to be proceeded with under a departmental enquiry. Unless and until he had recommended the same, the question of the Government directing the same will not arise. It is only Chandulal who was the then Superintendent of Police attached to the State Vigilance Commission who had formed the opinion. Therefore, the reference to departmental enquiry itself is bad in law and is against the provision of Rule 6(2) of the State Vigilance Commission Rules as well as Rule 14A of the C.C.A. Rules.
The appellant was not furnished with an enquiry report on the completion of the enquiry, as a result, it was not possible for him to canvass the correctness of the findings before the Government came to the conclusion with reference to the imposition of penalty of dismissal. The law on this aspect has been laid down in MAHABALESHWAR v. STATE OF KARNATAKA 1982(1) KLJ 105. This question is itself in a melting pot as seen from the decision in UNION OF INDIA v. E. BASHYAN AIR 1988 SC 1000 which has been referred to a larger Bench. Therefore, the failure to furnish a copy of the report of the Enquiry Officer will vitiate the entire enquiry,
Lastly, it is submitted that the Appellate Authority is the Governor. He had not considered the appeal in accordance with Rule 25 of the C.C.A. Rules. It is not a speaking order. Therefore, this would vitiate the appellate order.
3. The learned Government Advocate, in opposition would submit that it is incorrect to state that the Vigilance Commissioner had not formed an opinion. On the contrary, the records clearly disclose that both with regard to suspension as well as taking departmental action, the Vigilance Commissioner had formed an opinion and in fact it was his recommendation which was taken into consideration by the Government.
After Article 311 of the Constitution had been amended by Forty Second Amendment, it is no longer possible for the appellant or any delinquent officer to contend that he must be furnished with the copy of the report. The object of furnishing the copy of the report was at the time when the second show cause notice in relation to the punishment was issued. The law as it stood prior to the amendment was, he could not only challenge the correctness of the findings but also the quantum of punishment. The law has been substantially altered now, and as a result, the question of furnishing a copy of the report prior to the imposition of punishment does not arise at all because the Government was yet to make up its mind with reference to the imposition of punishment. The law in this regard has been succinctly laid down in SECRETARY, CENTRAL BOARD OF E & C v. K.S. MAHALINGAM : (1986)IILLJ434SC which relied on the earlier ruling in UNION OF INDIA v. TULSI RAM PATEL : (1985)IILLJ206SC . Therefore, it is that principle which has to be applied.
Lastly, it is submitted that it is not correct to urge that there has not been a proper consideration by the Appellate Authority, namely, the Governor. On the contrary, the records clearly show that the consideration by the Governor has been strictly in accordance with Rule 25 of the C.C.A. Rules. What was furnished to the appellant was a communication by the Secretary to the Governor with reference to the dismissal of the appeal by the Governor. The Governor, being an Appellate Authority, after going through the entire file, had come to the conclusion that the appeal was liable to be rejected. Therefore, it is not correct to contend that the order of the Governor is not a speaking order. Besides, where the order is confirmatory in nature, there is no necessity to write a detailed order provided the file discloses that there has been a proper consideration. That exactly is the position here.
4. We will now consider these points in seriatim.
We have very carefully perused the files produced by the learned Government Advocate. We find on two occasions the matter came up before the Vigilance Commissioner; one was with reference to the suspension of the appellant on 9-1-1976 when the Vigilance Commissioner states as follows:
'The Government may be moved for suspending the A.P.P.0. immediately pending disposal of the case.'
Then again, on a note put up by the Special Inspector General of Police on 24-1-1976, to the following effect:
'If approved, we may recommend this case, to the Government for action under Rule 14A.'
The Vigilance Commissioner gives his approval on 29-1-1976. Therefore, we are unable to accept the argument advanced on behalf of the appellant that the Vigilance Commissioner has not formed the requisite opinion as required under Rule 14A of the C.C.A. Rules and therefore he did not properly recommend to the Government. It was on this opinion, the Vigilance Commissioner writes to the Secretary to Government of Karnataka, Department of Law & Parliamentary Affairs, Vidhana Soudha, Bangalore, on 5/6-2-1976 to the following effect:
'Having regard to the nature and circumstances of the case, the ends of justice would be met if departmental action is taken against the A.G.O. The Vigilance Commissioner, therefore recommends that action under Rule 14A of KCS (CGA) Rules may be taken against the A.G.Q. Sri B.S. Somashekaraiah, Assistant Public Prosecutor, Manvi.'
Therefore, there has been every compliance with Rule 14A of the C.C.A. Rules and we reject the first of the arguments advanced before us.
5. As seen from the earlier narration, it is clear that the Inquiry Officer conducted the inquiry and submitted his findings. Whereupon, the Vigilance Commissioner, by his letter dated 9-2-1977 submitted the records of Inquiry and recommended the imposition of penalty of dismissal, on the appellant. The question now is, whether at this stage before the Government imposes the punishment by order dated 24-12-1977, is it necessary to furnish the copy of the report to the appellant. Had Article 311 of the Constitution remained unaltered, perhaps something could be said in favour of the appellant. But, in this case the Government chose to pass the order of dismissal which has already been extracted in our narration. On going through the evidence, it came to the conclusion that the findings of the Inquiry Officer will have to be accepted. Therefore, there was independent application of mind. It is exactly in such a case the furnishing of a second show cause notice is dispensed with and that is the object of amendment of Article 311. We need not very much labour on that point because the law, in our considered view, is concluded by two decisive rulings of the Supreme Court. The leading case in Union of India v. Tulsi Ram Patel. It was this which came to be relied on in Secretary, Central Board of E & C v. K.S. Mahalingam. We will extract paragraphs 6 and 9 of the Judgment in : (1986)IILLJ434SC :
'6. It thus appears that the Division Bench as also the learned Single Judge of the High Court took the view that the order of dismissal was vitiated as the Disciplinary Authority failed to give to the respondent an opportunity to show cause against the punishment of dismissal before the same was imposed on him. Both the Division Bench and the learned Single Judge of the High Court have completely overlooked the fact that the Constitution (Forty-Second Amendment) Act, 1976 has deleted from Clause (2) of Article 311 of the Constitution the requirement of a reasonable opportunity of making representation on the proposed penalty and, further, it has been expressly provided inter alia in the first proviso to Clause (2) that 'it shall not be necessary to give such person any opportunity of making representation on the penalty proposed'. After the Amendment, the requirement of Clause (2) will be satisfied by holding an inquiry in which the Government servant has been informed of the charges against him and given a reasonable opportunity of being heard. In the instant case, such an opportunity has been given to the respondent. It is also not disputed that after the order of dismissal was passed, the respondent was supplied with a copy of the report of the Inquiry Officer which enabled him to prefer an appeal to the Appellate Authority against the order of dismissal.
9. The question was also considered by a five-Judge Bench of this Court in Union of India v. Tulsi Ram Patel : (1985)IILLJ206SC . In that case, it has been observed per majority that the only right to make a representation on the proposed penalty which was to be found in Clause (2) of Article 311 of the Constitution prior to the Amendment having been taken, by the Constitution (Forty-Second Amendment) Act, there is no provision of law under which a Government servant can claim this right. In our view, therefore, both the learned Single Judge and the Division Bench of the High Court were not justified in holding that the order of dismissal was vitiated as the respondent was not given a second opportunity to make representation against the punishment of dismissal before the same was imposed on him.'
Where, therefore, there is no possibility of the proposed penalty, the question of canvassing the correctness of the finding at that stage before the Government comes to the conclusion as to what punishment is to be imposed, cannot and will not arise. From this point of view, we hold that there is ho necessity to furnish the appellant with the copy of the findings of the Inquiry Officer at that stage. No doubt, Union of India v. E. Bashyam says as follows:
'7. In fact this proposition has not been discussed at all in these Judgments. It is therefore futile on the part of the petitioners to contend that the point is covered and concluded in their favour. Even so we prefer to be guided by considerations of propriety and refer the matter to a larger bench. We also wish to place on record that merely granting leave in a matter like this will serve no better purpose than prolonging the misery of all concerned. It may be that after ten years the appeal is dismissed. It may happen that the employee may die meanwhile. It may also happen that the order of reinstatement may be confirmed after ten years. In that event the public exchequer will have spent lakhs of rupees without taking any work from the employee. With the pendency of an appeal on this point hundreds of allied matters may have to be admitted and tagged on to the present matter. The point therefore deserves to be settled at this stage itself by a larger Bench.
8. Learned Counsel for the respondents caveat or prays that if the Court is inclined to consider this question after granting special leave, the petitioner should be directed to pay the past arrears and continue to pay the salary to the respondent who has succeeded before the Central Administrative Tribunal. This question also, in our opinion, should better be dealt with by the larger Bench before which this matter is placed as per the directions of the Hon'ble Chief Justice. We accordingly refer this matter to a larger Bench. The office shall seek directions of the Hon'ble the Chief Justice in this behalf.'
But this by itself does not advance the case of the appellant. Therefore, we hold against the appellant on point No. 2.
6. Lastly, turning to the contention as to whether the order of the Governor is a non-speaking order, we find Rule 25 of the C.C.A. Rules requires the consideration of the following:
1) Whether the procedure prescribed had been complied with;
(2) Whether the findings are justified;
(3) Whether the penalty imposed is excessive, adequate or inadequate.
On a perusal of the file, we find elaborate notes were put up when the appeal memo was forwarded to the Law Minister and after setting out the facts, charges and the points raised in the appeal grounds, in paragraph 13 it is stated:
'It is seen from the perusal of the Inquiry Report received from the V.C. that the allegations made against the Inquiry Officer are baseless and there are no procedural irregularities. The Inquiry Officer after careful consideration of the evidence and the assessment of the circumstances has come to the conclusion that the charge against Sri B.S. Somashekariah is proved and the V.C. has agreed with the findings of the Inquiry Officer.'
In paragraph 14 it is stated:
'During the Inquiry Sri B.S. Somashekharaiah had full and reasonable opportunity of being heard in respect of the charge framed against him.'
In paragraph 15 it is stated:
'Hence none of the contentions urged in the appeal petition are sustainable.'
In paragraph 16 it is stated:
'Approval may therefore be accorded to recommend to His Excellency the Governor to reject the appeal.'
This was approved by the Law Minister and it was this which was put up to the Governor who stated on a consideration of the entire matter, 'I agree. The appeal is rejected' by his order dated 30-6-1978. What was communicated to the appellant was the fact of rejection of the appeal by the Governor. Therefore, on that basis it cannot be contended that there has been no application of mind or that the order of the Governor is a non-speaking order because the files produced by the learned Government Advocate disclose the contrary factual situation. Therefore, we reject this point as well. Under these circumstances, we are obliged to dismiss the appeal. It is accordingly dismissed.
However, having regard to the fact that the appellant was an Assistant Public Prosecutor who is faced with an order of dismissal, we do not want to mulct him with costs.