Orissa High Court
Sri Sadan Nayak And Another vs State Of Orissa And Others ... Opposite ... on 19 October, 2012
Author: S.K. Mishra
Bench: V.Gopala Gowda, S.K. Mishra
ORISSA HIGH COURT : CUTTACK
W.P. (C) No. 23926 of 2011
In the matter of application under Articles 226 and 227 of the Constitution of India
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Sri Sadan Nayak and another ... Petitioners
Versus
State of Orissa and others ... Opposite parties
For petitioners - M/s Patitapaban Panda,
B.B. Mahanty and B.P.
Satapathy
For opposite parties - Government Advocate
(for opposite party nos.1 &2)
Mr. Srimanta Das
(for opposite. Party no.3)
M/s D.P.Dhal, S.K. Dash, S. Mohapatra,
and A.K. Mishra
(for opposite party no.4)
Mr. Sukanta Kumar Dalai
(for opposite party no.5)
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PRESENT
THE HONOURABLE CHIEF JUSTICE MR. V.GOPALA GOWDA
AND
THE HONOURABLE MR. JUSTICE S.K.MISHRA
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Date of Hearing: 21.08.2012 Date of Judgment: 19.10.2012
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S.K.Mishra, J.This is a Public Interest Litigation filed by an Ex-MLA, Nabarangpur and another with a prayer to direct the State Vigilance Authority to initiate criminal proceeding under Prevention of Corruption Act, 1988 against opposite party no.5, who has allegedly misappropriated Government funds as per the suggestion of the Audit Report and to direct the State Election Commission to take immediate steps against opposite party no.5, who 2 has furnished false affidavit, as per the representation dated 19.01.2011 submitted by the petitioner no.1. The petitioners further pray to direct the Central Bureau of Investigation or other independent organization to cause an enquiry to find out the veracity of truth of misappropriation of public fund by the public officer allotted by the Central Government as well as the State Government for the development of K.B.K district under different scheme.
2. During the years 2005-06 and 2008-09 Government funds were allocated for purchase of cement and rice under different Central Government schemes in connection with developmental work of Nandahandi Block in the district of Nabarangpur. It is alleged that during the said period opposite party no.5 was working as Senior Clerk-cum-Store in- Charge of the Block, who was maintaining stock registers regarding despatch of cement and rice to different parties and also maintaining cash registers towards the payment made to different persons during the relevant period for the development work of the Block. At that time, opposite party no.5 and many others under the active assistance of Government officials, it is alleged, misappropriated crores of rupees pertaining to Nandahandi Block and tried level best for suppression of material facts and to shield the culprits from liabilities. In such process, opposite party no.5 became clutch free by accepting his resignation and allowed him to contest as MLA from 75 Constituency of Orissa from the ruling party showing no Government dues pending against him without initiation of vigilance case under Prevention of Corruption Act, 1988 and Indian Penal Code, 1908 for commission of offence under Sections 468, 469 and 470, IPC. The petitioners further alleged that opposite party no.5 had also furnished false affidavit before the Election Officer notwithstanding the report of the Local Fund Audit and the Special Audit and the Block Development Officer's own assessment making him liable for recovery of the same wherein both the audit report, it is suggested for recovery and initiation of proceeding, but till date no action has been initiated 3 against opposite party no.5 despite the representation of the petitioner no.1 before the Election Commission as well as Director General of Vigilance.
3. The opposite party no.2, through the Addl. BDO, has filed a counter affidavit. It is submitted on behalf of opposite party no.2 that the Special Audit Report No.4/09-10 on the accounts of Nandahandi Panchayat Samiti had not been received by the Block Office, Nandahandi. The Special Audit Report No.28/10-11 reveals that an amount of Rs.6,29,698/- only was held under objection in different paragraphs of the Audit Report, which was communicated as per letter no.19818, dated 07.10.2010 of the F.A.-cum-Joint Secretary to Government, P.R. Department, Odisha, Bhubaneswar against which opposite party no.5 had deposited an amount of Rs.4,99,696/- vide Money Receipt No.69, dated 25.10.2010 and M.R. No.42, dated 12.08.2011 leaving a balance of Rs.1,30,000/-. Later on, the balance amount of Rs.1,30,000/- has been deposited by opposite party no.5 vide MR. No.26, dated 01.12.2011 of the BDO, Nandahandi.
Denying the allegations made by the petitioners, opposite party no.2 further pleads that the BDO, Nandahandi had reported that the balance amount of Rs.4,04,260/- was provisionally assessed by the Block Officer which covers under the Special Audit. The Special Audit of account of Nandahandi Block is in progress and yet to be completed. Hence, Rs.4,04,260/- as shown in preliminary assessment has been ignored until receipt of final report from the Audit Department. He further pleads that since the audit report was not received, initiation of proceeding against opposite party no.5 does not arise at that time.
4. The opposite party no.5 has filed counter affidavit denying the allegations made by the petitioners.
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5. The Senior Standing Counsel for the Vigilance Department has produced the para-wise comments received from the Superintendent of Police, Vigilance, Koraput Division, Koraput on 12.09.2011, wherein it has been reported that opposite party no.5 was working as Senior Clerk-cum-Store In-Charge of Nandahandi Block, Distt. Nabarangpur. He tendered his resignation to the Collector & District Magistrate, Nabarangpur on 01.11.2008 in order to contest as MLA candidate from the 75 Nabarangpur Assembly Constituency during the last election. The petitioner no.1 also contested the election on Congress ticket against opposite party no.5 and was defeated. It is, therefore, submitted that there is a political rivalry between petitioner no.1 and opposite party no.5. The last election was held in the year, 2009. Basing on the resignation letter of opposite party no.5, the Collector, Nabarangpur, vide letter no.2174, dated 28.11.2008 sought for clarification from the BDO, Nandahandi Block regarding Government dues outstanding against opposite party no.5, if any. The BDO, Nandahandi Block detected and assessed Rs.61,910/- towards loss of stock of 105 bags of cement @ Rs.205/-. Later on the BDO also detected loss of Rs.4,04,260/- towards cost of 1972 bags cement. Thus, total Rs.4,66,170/- was assessed by the BDO to be recovered from opposite party no.5. Opposite party no.5 had deposited Rs.61,910/- vide MR No.16 dated 03.02.2009 as part payment. In this connection Special Audit of the account of Nandahandi Block was taken up. Since opposite party no.5 had deposited Rs.61,910/- towards part payment and Special Audit was in progress and not yet completed, awaiting final audit report, the BDO vide letter No.185 dated 10.02.2009 had suggested to the Collector to ignore the balance amount against opposite party no.5 till receipt of final audit report. Accordingly, the Collector, Nabarangpur accepted the resignation letter of opposite party no.5 vide District Office Order No.520 dated 23.03.2009 by taking affidavit and power of attorney from opposite party no.5, his father, mother and 5 wife for recovery of Government dues if found in future. Later on opposite party no.5 had, further, deposited Rs.1,30,000/- vide MR No.69 dated 25.10.2010.
6. As on 23.03.2009, i.e. date of acceptance of resignation of opposite party no.5 by the Collector, the Special Audit was incomplete and final report was not issued.
7. It is further pleaded that the Local Fund Audit, Jeypore vide letter no.2059 dated 16.12.2009 suggested for recovery of Rs.1,18,645/- towards misappropriation of cash by Sri A.K. Sahu, Ex-Cashier and Rs.5,98,421/- towards loss of stock and store from Sri. D. Nagabhusan Dora, Ex-Head Clerk, Sri Asharam Nayak, Ex-BDO and Sri Manohar Randhari (opposite party no.5), Ex-Store In-charge. But the Special Audit report went missing in transit for which the Government decided to take up another Special Audit by the same set of Auditors. The Government of Odisha in P.R. Department vide letter no.26035 dated 04.09.2010 intimated to the Collector, Nabarangpur that the audit account of Nandahandi Panchayat Samiti, which was completed earlier, was to be taken up on 14.09.2010 by Sri M.S. Pan and Sri P.K. Dash, Auditors of P.R. Department. After completion of the Special Audit, the Auditors detected misappropriation of cash of Rs.1,18,645/- by Sri A.K. Sahu and loss of stock and store in respect of cement worth Rs.5,98,421/- and suggested recovery of the amount from Sri D. Nagbhusan Dora, Sri Asharam Nayak, and opposite party no.5. The Vigilance Department submits that the Audit Report dated 25.04.2011 detected misappropriation of Rs.1,04,28,682/- by the opposite party no.5 is not true. The above amount relates to misappropriation amount detected in 7 different Blocks of the State. Out of misappropriation amount of Rs.1,04,28,682/- only, Rs.7,17,066/- relates to Nandahandi P.S. Out of Rs.7,17,066/-, Sri Amiya Kumar Sahu was held responsible for Rs.1,18,645/- and for rest amount of Rs.5,98,421/-, the audit suggested recovery of the amount from Sri D. Nagabhusan Dora, Sri Asharam Nayak and opposite party no.5. After obtaining the 6 Special Audit Report, notice was issued to opposite party no.5 for recovery of amount vide letter no.804 dated 05.05.2011 and 1415 dated 25.07.2010. Accordingly, the opposite party no.5 had deposited Rs.3,69,696/- vide MR No.42 dated 12.08.2010. Thus in total the opposite party no.5 had already deposited Rs.5,61,606/- towards loss of stock and store as suggested by the audit report. It is very emphatically submitted that on receipt of information about misappropriation of cash by the official of Nandahandi Block, DSP, Vigilance, Nabarangpur Unit had sought detailed information and supporting documents so as to initiate formal vigilance enquiry. But the BDO intimated that final audit report is awaited. On 20.12.2008, there was no audit report and no vigilance case/enquiry pending against opposite party no.5 for which Under Secretary to G.A. Department vide letter no.9483 dated 20.12.2008 has rightly intimated that there is no Vigilance case/enquiry against opposite party no.5.
However, it is submitted that an issue based open enquiry has already been taken up vide Koraput Vigilance Case No.30 dated 16.06.2011 basing on Special Audit Report for misappropriation of Government funds by the official of Nandahandi Block and enquiry is in progress.
8. This being the factual situation, it is to be seen whether a writ of mandamus should be issued directing opposite parties to initiate a criminal case under the Prevention of Corruption Act, 1988 and to make an enquiry against opposite party no.5 for misappropriate and misconduct.
9. The Hon'ble Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal and others, (2010) 3 SCCs 402 has dealt with the scope and ambit of a public interest litigation and after carefully considering the law relating to the PIL has issued the following direction:-
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"1. The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
2. Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
3. The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
4. The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
5. The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
6. The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
7. The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
8. The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.
10. Following the ratio decided in the aforesaid case and considering the fact that the Vigilance Department has intimated the Court that they have already been taken up an issue based open enquiry vide Koraput Vigilance Case No.30 dated 16.06.2011, it shall be appropriate on the part of this Court to direct that the Superintendent of Police, Vigilance, Koraput Division at Jeypore shall take appropriate steps for expeditious completion of the enquiry, as afore described, within a time bound period of three months from the date of notice of this order. Since the matter is already a subject of an issue based open enquiry, 8 we do not consider it to be appropriate to issue a writ of mandamus on the prayer made by the petitioners on other issues.
Accordingly, the writ petition is disposed.
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S.K. Mishra,J.
V. Gopala Gowda, C.J. I agree.
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V. Gopala Gowda, C.J.
Orissa High Court, Cuttack,
Dated, 19th October, 2012/PCD