Rama Jois, J.:— In this writ petition, the petitioner, who was a Head Constable in the Police Department of the State Government, has prayed for quashing the order imposing the penalty of dismissal, from service against him, which has been confirmed in appeal by the appellate authority and in revision by the State Government.

2. FACTS: In the year 1974, the petitioner was working as a Head Constable at Birur Police Station. A departmental enquiry was instituted against him on the following charge (Exhibit-F):

(2) Charge in brief: Grave official misconduct in harrassing the public; demanding and accepting of Rs. 1,000/- for the release of Sri H.D Puttappa and his brother Murugendrappa.

(3) Facts and evidence:

You Sri Gopalakrishna Raju, HC 81 of Sringeri P.S were previously working in Birur P.S

On 4-4-1974 the PSI, Birur, you and P.L.D Bank officials of Kadur went in a jeep for investigation in Birur P.S Cr. No. 13/74U/s 353-506 IPC and arrested the accused concerned in the above case, i.e, Sri Puttappa and Muragendrappa of Hirenallur village and brought them to the Police Station in the afternoon and kept them in the Police lock-up. You, who were present at the Police Station demanded an illegal gratification of Rs. 3,000/- to show official favour in releasing the accused on bail. Sri Basavartajnppa went to Sri Pandu of Birur as per the instructions of Sri H.D Puttappa and borrowed Rs. 490/- and he contributed Rs. 10/- and paid Rs. 500/- to you through Sri Puttappa. You were not contended with the above amount of Rs. 500/- demanded again Rs. 1,000/-. The said Sri Basavarajappa went to Melanahalli along with Sri M. Basappa, Hullamane Kallappa and Shivane Kallappa and collected Rs. 200/- from Sri M. Basappa and Rs. 180/- from Hullumane Kallappa and Rs. 200/- from Shivana Kallappa and out of the amount collected paid Rs. 500/- to you. Then the accused were released on bail at about 8-15 P.M Thereby you have acted in a most irresponsible 1 manner in taking the law to your own hand in demanding and accepting of illegal gratification of Rs. 1,000/- from Sri H.D Puttappa for the release of Sri H.D Puttappa and his brother Murugendrappa. Your action is reprehensible. Hence the charge.

It is proposed to hold regular departmental enquiry against you in this connection. The following witnesses and documents will be examined. More evidence will be adduced if felt necessary.

The petitioner denied the charge. The Superintendent of police, Chickmagalur held the enquiry against the petitioner. He found him guilty of the charge. Thereafter he issued a show cause notice (Exhibit-J), proposing to impose penalty of dismissal against the petitioner. The petitioner furbished his reply (Exhibit-K). After considering the reply, the Superintendent of Police passed the final order on 7-1-1978 (Exhibit-L). By the said order he dismissed the petitioner from service. The petitioner preferred an appeal before the Deputy Inspector General of Police, Southern Range, Mysore (Exhibit-M). The appellate authority dismissed the appeal of the petitioner (Exhibit-N). Thereafter the petitioner submitted a revision petition before the State Government under section 25 of the Karnataka Police Act (Exhibit-O). The State Government dismissed the revision petition as per order dated 4-8-1978 (Exhibit-P). Aggrieved by these orders, the petitioner has presented this writ petition.

3. Sri G.N Seshagiri Rao, learned counsel for the petitioner submitted that the disciplinary proceedings which culminated in the imposition of the penalty of dismissal against the petitioner and the appellate and revisional orders are liable to be quashed in view of the serious legal infirmities committed by the authorities. He raised the following contentions:

(1) There were two preliminary enquiries. The officer, who conducted the first preliminary enquiry, opined that there was no prima facie case to hold a departmental enquiry against the petitioner. The disciplinary authority without accepting the said report, again referred the matter to another officer, who gave the report that there was a prima facie case for holding a departmental enquiry against the petitioner. The enquiry was instituted on the basis of the second preliminary enquiry report and, therefore, it was illegal.

(2) The charge framed against the petitioner itself is unsustainable as the petitioner had no power to release the two arrested persons involved in the case.

(3) Presenting Officer was not appointed as required under rule 6(5) of the Karnataka Police Services (Discipline and Appeal) Rules and as a consequence the Enquiry Officer himself acted, both as prosecutor and Judge and, therefore, the proceedings are liable to be quashed on the ground that they are opposed to the aforesaid rule and also the principles of natural justice.

(4) As the petitioner was not examined after the recording of evidence on behalf of the prosecution, there was contravention of para 473 of the Police Manual.

(5) The finding recorded by the Enquiry Officer and accepted by the appellate and revisional authorities is based on no evidence.

4. Regarding the first contention, there is no dispute that in the first instance the preliminary enquiry was conducted by the then Deputy Superintendent of Police Sri Chougale and in his report he did not suggest that there was a prima facie case for holding a departmental enquiry against the petitioner, but as the Superintendent of Police was not satisfied with the said preliminary enquiry report he referred the matter to the Deputy Superintendent of Police Sri Nagendra. After considering the material available he was of the opinion that there were circumstances for holding a regular departmental enquiry against the petitioner. On the basis of the said report, the Superintendent of Police instituted the departmental enquiry. But the question for consideration is as to whether the departmental enquiry instituted against the petitioner is illegal or without jurisdiction in view of the first report. The preliminary enquiry conducted before the commencement of a departmental enquiry is not a statutory enquiry. It is only for the purpose of satisfaction of the disciplinary authority, as to the existence of a prima facie case against the concerned civil servant to institute a regular departmental enquiry. Therefore, if the disciplinary authority was not satisfied with the investigation and the report made by the officer to whom the preliminary enquiry was entrusted, it was open for the disciplinary authority to ask another officer to look into the matter afresh and to make a report. After the officer to whom the matter was so entrusted reported that there was a prima facie case for holding an enquiry against the concerned officer, the disciplinary authority was competent to institute the disciplinary enquiry. No statutory rule or principle of law is shown on the basis of which the institution of departmental enquiry on the basis of a second preliminary report could be considered as illegal and without jurisdiction. As observed by the appellate authority the petitioner was not punished merely on the basis of the second report. He was found guilty and punished on the basis of the evidence adduced in a regular enquiry. Therefore, I reject the first contention.

5. The second contention urged for the petitioner is that according to the provisions of the Police Act and the Rules framed thereunder and the provisions of the Police Manual, the Sub-Inspector of Police, who was incharge of the Police Station as Station House Officer alone was competent to release the arrested persons and, therefore, the charge framed against the petitioner on the ground that he demanded and accepted the illegal gratification for the release of the two arrested persons is unsustainable as the petitioner had no power to do any official favour to the arrested persons. In this behalf, the learned counsel for the petitioner placed strong reliance on the entries in the case diary (Exhibit-D) as also on the evidence of Sub-Inspector of Police Sri R.B Mane who was examined as P.W 12 (Exhibit-P. 12). He pointed out that according to (Exhibit-D) it was the Sub-Inspector of Police who, released the two arrested persons on bail on taking surety and this is also reiterated by the Sub-Inspector of Police in his evidence. Therefore the learned counsel for the petitioner contended that when the petitioner had no power to release the arrested persons and in fact also he had not released them, the Enquiry Officer should have held that the charge framed against the petitioner itself was illegal and unsustainable.

6. I am not impressed by the argument. The charge against the petitioner read with the statement of allegations shows that the case against the petitioner was that he demanded an illegal gratification as a consideration for the release of the two arrested persons at a point of time when the Sub-Inspector of Police was not in the Police Station and pursuant to the said demand, he collected an illegal gratification of Rs. 1,000/- consisting of two instalments of Rs. 500/- each. Therefore the question as to whether the petitioner had actually released them or not is not relevant. If, in the absence of the Sub-Inspector of Police, the petitioner, who was a Head Constable, demanded the illegal gratification assuring the release of the two arrested persons on such payment and received the illegal gratification that itself constitutes a serious misconduct on the part of the petitioner and the charge cannot be declared illegal or unsustainable on the sole ground that he had no power to release the arrested persons and that the release of the arrested persons was by the Sub-Inspector of Police in the usual course. Further, it should be pointed out that it is not shown that the arrested persons were aware that the petitioner had no authority to release them and, therefore, it is unlikely that they would have paid the amount as demanded by the petitioner for the purpose of getting themselves released. In the complaint given by Puttappa on 6-4-1974 (Exhibit-E), it is specifically stated that after the Sub-Inspector of Police left the Police Station, the petitioner demanded and accepted the illegal gratification. This allegation made in the complaint has also been substantiated in the evidence given by him and it is also corroborated by the evidence given by other persons. Therefore, if the petitioner had actually demanded and accepted the illegal gratification from the two arrested persons assuring their release on such payment, he cannot contend that no charge could be framed against him just because under law he had no power to release the arrested persons. As pointed out by the Government in the revision order that it was quite likely that the petitioner had demanded and accepted the illegal gratification under instructions from the Sub-Inspector of Police and unfortunately no departmental enquiry was institute 1 against the Sub-Inspector of Police also. One of the rersons for that might be that there was no allegation made against the Sub-Inspector of Police about the demand and acceptance of the illegal gratification. In the complaint lodged by Puttappa. However, the fact remains that if the petitioner had actually demanded and collected illegal gratification whether at the instance of the Sub-Inspector of Police, who had the power to release the arrested persons or on his own by misusing his official position as Head Constable and the situation in which the accused persons were placed, the petitioner cannot escape from the charge by just pleading that he had no power to release the two arrested persons. Hence, I reject the second contention.

7. The third contention of the petitioner is that rule 6(5) of the Rules required the appointment of a Presenting Officer to present the case on behalf of the department and in the present case no such Presenting Officer was appointed and, therefore, the enquiry proceedings held by the enquiry Officer was illegal. He further submitted that in the absence of Presenting Officer, the Enquiry Officer himself acted both as a Prosecutor and a Judge and such a procedure is opposed to the principles of natural justice and fundamental principles of natural justice and fundamental principle of justice and fair play. There can be no doubt that if the Enqufiy Officer had played the dual role both as a Presenting Officer and as an Enquiry Officer, the entire proceedings stands vitiated and liable to be quashed on the ground of violation of principles of natural justice as also on the ground that it is opposed to the basic requirement of justice and fair play.

8. rule 6(5) of the Rules no doubt requires the appointment of a Presenting Officer. Relevant portion of the rule reads:

“6. PROCEDURE FOR IMPOSING MAJOR PENALTIES.—

(5) The Disciplinary Authority or the specially empowered authority, as the case may be, may nominate any police officer to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the Inquiring Authority.)

The above rule provides that when disciplinary proceedings are instituted against a police officer, the disciplinary authority may appoint a Presenting Officer to present the case against the delinquent officer and not that a Presenting Officer must always be appointed. Even so there can be no doubt that it is desirable that in every case such an officer should be appointed for presenting the case on behalf of the prosecution against the concerned delinquent Police Officer. But the question for consideration in this case is as to whether the enquiry proceedings in this case could be declared illegal on the sole ground that no Presenting Officer was appointed. In my opinion, the mere fact that no Presenting Officer was appointed could not constitute a ground for invalidating the enquiry proceedings in this case. In my view, it is not the existence or non-existence of the Presenting Officer that constitutes the deciding factor on the question as to whether the enquiry officer acted both as a Prosecutor and a Judge, but it is the manner in which the enquiry was conducted by the Enquiry Officer which constitutes the basis to decide the said question. If the records disclose that in the absence of a Presenting Officer the Enquiry Officer had put leading questions to the Prosecution witnesses or cross-examined the defence witnesses or made any suggestions to them which indicate a biased mind, then the enquiry proceedings stand vitiated on the ground that the Enquiry Officer acted both as a Judge and a Prosecutor. (See: Shirguppi v. Deputy Superintendent of Police(1) Similary even when the Presenting Officer is appointed, if the Enquiry officer proceeds to crose-examine the defence witnesses or proceeds to ascertain incriminating information from the prosecution witnesses which they themselves do not disclose, by putting leading questions, such a circumstance may also go to show that the Enquiry Officer acted as both the Prosecutor and the Judge. In order to find out as to whether the Enquiry Officer had acted in an unfair manner, in that he acted both as a Judge and as a Prosecutor and the petitioner sufferred by the non-appointment of a Presenting Officer, I asked the learned counsel for the petitioner to point out any portion of the deposition of any of the witnesses examined on the side of the prosecution or defence which indicates that the Enquiry Officer acted as a Judge and also a Prosecutor. The learned counsel was unable to point out even a single instance to show that the Enquiry Officer acted in a partisan manner. The oral evidence given by the prosecution witnesses has been recorded as narrated by them. The Enquiry Officer has not put any question to the witnesses. Similary the evidence given by the defence witnesses has been recorded as narrated by them. The Enquiry Officer has not put any question to them and has not cross-examined them. Therefore, I fail to see how the mere non-appointment of a Presenting Officer vitiated the enquiry proceedings and constitutes the basis to hold that the Enquiry Officer acted both as a Prosecutor and a Judge. Hence the third contention is also rejected.

9. The fourth contention urged for the petitioner is based on para 473 of the Police Manual. It reads thus:

“473. If the accused Police Officer makes a written or oral application for permission to examine himself as a witness in his defence, the application should be granted and the accused officer examined as defence witness.”

Learned counsel for the petitioner submitted that the procedure prescribed in the aforesaid para must have been followed by the Enquiry Officer, in that the petitioner should have been permitted to examine himself as a witness in his defence. The contention raised on behalf of the petitioner is patently untenable in view of the wording of the aforesaid para. According to the said para, if the concerned accused Police Officer makes a written witness in his defence, the Enquiry Officer is bound to allow the accused officer to examine himself as a defence witness. It is not the case of the petitioner that he had made any such written request. In order to find out as to whether the petitioner had made any such request and the same was unjustly negatived by the Enquiry Officer in contravention of the aforesaid para, I examined the original records which were produced before me by the learned High Court Government Pleader at the time of hearing. The original records disclosed that after the recording of evidence was completed, while no such request was made by the petitioner the Enquiry Officer himself specifically asked the petitioner as to whether he had anything to say and the petitioner replied that he would make his submissions through a written statement. Therefore far from violating the provisions of para 473 of the Police Manual, the Enquiry Officer himself asked the petitioner whether he had anything to say and the petitioner did not offer himself to give evidence even when so asked by the Enquiry Officer but he stated that he would be submitting his written statement. Therefore, there is no substance in the fourth contention also.

10. The fifth and the last contention urged for the petitioner is that the finding recorded by the Enquiry Officer and confirmed by the higher authorities was based on no evidence and also contrary to the evidence on record.

11. In order to appreciate the above contention, it is necessary to refer to the relevant oral and documentary evidence, which were adduced before the Enquiry Officer:

(a) Extract of the case diary of the Birur Police Station dated 4th April 1975 (Exhibit-D)

(b) Comphaint dated 6th April 1971 given by H.D Puttappa, one of the arrested persons before the Superintendent of Police, Chickmagalur complaining about the demand and acceptance of illegal gratification by the petitioner (Exhibit-E)

(c) Chit by one Panduranga Shetty addressed to H.D Puttappa, requesting him to return the balance of Rs. 424 out of Rs. 490 paid to him after deducting a sum of Rs. 66 stating that he had given the amount to H.D Puttappa when he was in distress and therefore he should return the amount as he (Panduranga Shetty) was in distress (Exhibit-H).

(d) Deposition of the complainant H.D Puttappa (P.W 1) and his elder brother Murugendrappa (P.W 2)

(e) Deposition of B.S Panduranga Shetty P.W 3

(f) Tape record in which the conversation between Panduranga Shetty and Basavarajappa in connection with the payment of amount by Panduranga Shetty for the purpose of giving bribe to the petitioner.

(g) Deposition of H.N Basavarajappa P.W 4.

(h) Deposition of M. Basappa, P.W 5.

(i) Deposition of Shivane Kallappa, P.W 9.

(j) Deposition of Hullumane Kallappa, P.W 10.

(k) Deposition of R.B Mane, S.I, P.W 12.

The Enquiry Officer relying on the oral and documentary evidence including the tape-recorded statement alleged to he of Panduranga Shetty came to the conclusion that the charge framed against the petitioner was established.

12. In support of the fifth contention, learned counsel for the petitioner submitted as follows:

(i) The evidence of P.W 3 in the form of tape recorded conversation was inadmissible as a piece of evidence as the voice was denied by P.W 3 and as the finding was based on this piece of evidence, it should be held that the finding was based on no evidence.

(ii) The Enquiry Officer and the higher authorities erred in disregarding the documentary evidence in the form of case diary as also the evidence of P.W 12 Sub-Inspector of Police, R.B Mane, which showed that it was he who released the arrested persons.

(iii) There is no direct evidence at all in support of the demand and acceptance of the illegal gratification.

13. Learned counsel for the petitioner is right in his submission that unless the tape recorded statement attributed to P.W 3 Panduranga Shetty was either admitted by his or it was proved beyond reasonable doubt that it was him statement, no reliance could have been placed on the tape-recorded statement. The tape-recorded statement of P.W 3 relates to the statement made by him earlier to the effect that he had given a sum of Rs. 490 as loan to the complainant for enabling him to pay the first instalment of illegal ??? of Rs. 500 to the petitioner P.W 3 denied having made such a statement. He also denied the voice. But the Enquiry Officer on comparing the voice of P.W 3 when he gave evidence with that of the tape recorded voice took the view that the tape recorded? voice was that of P.W 3. P.W 3 having denied the voice also stated that he had seen in some dramas that some persons speak in different voices. I see considerable force in the contention urged for the petitioner that no reliance could have been placed on the tape-recorded statement alleged to be of P.W 3. When the voice was specifically denied, the Enquiry Officer was wrong in concluding that on comparing the voice of P.W 3 when he gave evidence before him and the voice in the tape recorded statement, he was satisfied that the statement was that of P.W 3 in the absence of any other corroborative evidence about the recording of the conversation. In these circumstances, if the finding recorded by the petitioner was based solely on the tape-recorded statement of P.W 3 notwithstanding the denial of voice of P.W 3, I would have had no hesitation in holding that the finding was based on no evidence and the tape-recorded evidence could not be treated as evidence at all. But in the present case, the finding recorded by the enquiry officer was based on other clear and specific evidence and not merely on the basis of the tape recorded statement alleged to he of P.W 3. In this behalf, the appellate authority has rightly pointed out as follows:

“The appellant appears to be under a wrong impression that he has been punished relying on the tape recorded evidence only. There is overwhelming evidence of P.Ws on record in the D.E for the alleged demand and acceptance of the amount by the appellant. Hence the points raised do not help the appellant to disprove the charge against him.”

After going through the enquiry report and also the orders of the appellate and revisional authorities, I am satisfied that the finding recorded against the petitioner om the charge is based on other clear and specific evidence and in the presence of such evidence, it is not open for this Court to set aside the finding recorded on the ground that one piece of evidence which was relied on by the Enquiry Officer to come to such a conclusion could not be considered as valid evidence. Further the appellate authority has hold that even excluding the said piece of evidence the other evidence available was sufficient to prove the charge while confirming the finding recorded by the Enquiry Officer.

14. The next point sought to be made out by the petitioner was about the disregarding of the entries in the Station House Diary and also the evidence of P.W 12. This point urged for the petitioner in support of the fifth contention is in effect covered by the second contention, considered earlier. As pointed out earlier while dealing with the second contention, even assuming that the petitioner had no power to release the arrested persons and also actually he did not release them and they were released only by the Sub-Inspector of Police, who alone had the authority to release them, the petitioner cannot escape from the misconduct alleged against him in the charge framed against him when it is proved by other evidence. The entries in the Station House Diary as also the evidence of P.W 12 only go to show that it was the Sub-Inspector of Police who released the arrested persons and not the petitioner and does not exclude the possibility of the petitioner having demanded and accepted the illegal gratification. That circumstance therefore cannot constitute the basis for holding that the finding recorded by the Enqiry Officer against the petitioner is perverse or based on no evidence or contrary to the evidence on record.

15. The last submission in connection with the fifth contention was that there was absolutely no evidence at all against the petitioner; I am unable to agree. In the complaint lodged by Puttappa on 6-4-1974 (Exhibit-E) he has specifically stated that after Sub-Inspector of Police went out of the Police Station, the petitioner demanded illegal gratification and pursuant to such demand, he collected a sum of Rs. 1000. Before the Enquiry Officer the substance of the evidence given by Puttappa is as follows: That after he and his brother were arrested and brought to the Police Station, the Sub-Inspector of Police went out stating that he was going to Bhadravati and just before starting his motor-cycle he sent a chit to the petitioner through a Police Constable or some other person and after taking the said chit, the petitioner took him and his brother to Harsha Mahal Hotel as they stated that they were hungry. In the said hotel the petitioner stated that on an earlier occasion he and his brother had informed the Superintendent of Police about the petitioner's taking of bribe of Rs. 60 and that he was waiting for an opportunity to take revenge against them and therefore he had told the Sub-Inspector of Police that he need not deal with Puttappa and that the petitioner would take care of them. Thereafter, he demanded an illegal gratification of Rs. 3000 and thereafter reduced it to Rs. 2000 and ultuimately to Rs. 1000. Basavarajappa gave Rs. 500 to him and he gave it to the petitioner. The petitioner was not satisfied with the said amount and threatened that he and his brother would be insulted. Basavarajappa assured them that he would bring another Rs. 500 even if necessary by selling some property and ultimately Basavarajappa informed him to the effect that he had paid the said amount to the petitioner. The above statement is corroborated by the evidence given by Murugendrappa (P.W 2) H.N Basavarajappa (P.W 4) and the evidence of Basappa (P.W 5), as also the evidence given by Shivane Kallappa (P.W 9) and Hullumane Kallappa (P.W 10) from whom according to Basavarajappa he took loan of Rs. 200 and Rs. 300, respectively, for paying the second instalment of bribe of Rs. 500 to the petitioner. The said evidence has been accepted by the Enquiry Officer and the finding was recorded holding the petitioner guilty of the charge. The finding was affirmed by the appellate authority and thereafter by the revisional authority. As regards the evidence of P.W 3 Panduranga Shetty though he denied the payment of Rs. 490 on 4-4-1974 to Puttappa for paying the bribe to the petitioner, he admitted that the chit (Exhibit-H) was in his hand writing, but explained that the amount referred to therein was advanced by him to Puttappa in some other context. But the Enquiry Officer believed the version of the complainant as P.W 3. admitted the genuineness of the chit (Exhibit-H). Therefore, I am unable to agree that the finding recorded against the petitioner is based on no evidence.

16. In this behalf, it is necessary to point out that in a petition presented under Article 226 of the Constitution challenging the legality of the findings recorded in disiplinary proceedings, it is not open to this Court to reappreciate the evidence and to find out as to whether the finding recorded in the disciplinary proceedings is based on sufficient evidence. This Court can only interfere with a finding based on no evidence. (See: State of Andhra Pradesh v. Sree Rama Rao(2) Railway Board, New Delhi v. Niranjana Singh(3) and Nand Kishore v. State of Bihar . 1978 3 SCC 366 Therefore, in the present case, it was for the Enquiry Officer, the disciplinary authority, appellate authority and the revisional autority to see as to whether the oral evidence given by Puttappa which was corroborated by the evidence of Basavarajappa and others was reliable and sufficient to record a finding of guilt against the petitioner on the charge framed against him. All the, authorities have concurrently come to the conclusion that the evidence was reliable, clear and sufficient to hold that the petitioner was guilty of the charge. Hence the finding recorded in the present case cannot be said to have been based on no evidence which could only constitute a ground for setting aside the finding of fact. Hence, the fifth contention is also liable to be rejected.

17. In the result, all the contentions urged for the petitioner fail and I make the following order:

(i) Rule discharged.

(ii) Writ Petition dismissed.

(iii) No costs.