Himachal Pradesh High Court
Parkashi Devi And Another vs State Of Himachal Pradesh And Others on 27 June, 2023
Bench: M.S. Ramachandra Rao, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 5581 of 2022 Reserved on: 21.06.2023 Decided on: 27.06.2023.
Parkashi Devi and another .....Petitioners.
Versus State of Himachal Pradesh and others .....Respondents. Coram:
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?
For the petitioners: Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate. For the respondents: Mr. Anup Rattan, Advocate General, with Mr. Navlesh Verma, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Gautam Sood and Mr. Arsh Rattan Deputy Advocates General, for respondents No. 1,4 and 6.
Ms. Shradha Karol, Advocate, for respondents No. 2,3 and 5.
____________________________________________________________ M.S. Ramachandra Rao, Chief Justice The Background facts The first petitioner is the wife of the second petitioner.
2. The first petitioner was working as Peon in the office of the Judicial Magistrate 1st Class Tehsil Dharamshala ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 2 District Kangra, HP who has been impleaded as respondent no. 5.
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3. The second petitioner is working as Senior Assistant in the office of Chief Engineer, Kangra Division HPPWD Dharamshala, HP.
4. In this writ petition, the petitioners have impleaded the State of Himachal Pradesh through Secretary (Home) as respondent no. 1; the High Court of Himachal Pradesh, through Registrar General as respondent no.2; the District and Sessions Judge, Kangra at Dharamshala as respondent no.3; the Additional Director General State Vigilance and Anti Corruption Bureau, Himachal Pradesh as respondent no.4; and the Additional Superintendent of Police, State Vigilance and Anti Corruption Bureau, Dharamshala as respondent no.6.
5. The petitioners were residing in a house in Dharamshala which is in the name of petitioner no. 2.
6. There was a raid conducted on 15..2021 at that house by the officials of Income Tax Department and at the time of ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 3 the raid, cash amounting to Rs.9,29,581/ was found lying in the vehicle which was seized by the Income Tax Department .
and deposited with the accounts of the said department. In continuation of the said search, lockers in the name of petitioner no. 2 were also searched in the Kangra Central Cooperative Bank and Bandhan Bank, Dharamshala. A sum of Rs.42,30,000/ cash was found lying in the lockers belonging to petitioner no. 2 which was also deposited by the Income Tax Authority in their account.
7. The Income Tax Department, according to the petitioners had initiated proceedings against them in respect of the previous five assessment years and made assessments which are stated to be pending in appeal before the Appellate Authority.
8. The Income Tax Department then issued notice dt.
18.12.2021 under Section 274 read with Section 271 (1) (b) of the Income Tax Act, 1961 to the second petitioner stating that he had failed to comply with the notice issued on 31.10.2021 to him under Section 142 (1) of the said Act and ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 4 to showcause why penalty be not imposed on him under Section 271 (1) (b) of the Act.
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9. There were reports in the media about the search on the premises of the petitioners and the seizure of the cash as mentioned above.
10. The District and Sessions Judge, Kangra ( respondent no.3) sent a communication to the Civil Judgecum Judicial Magistrate 1st Class Court No. 1, Dharamshala ( respondent no.5) where the petitioner no. 1 was employed to find out details from the Income Tax Department and to hold a discreet inquiry about the allegations against petitioner no.
1 as they had appeared in the news papers.
A discreet inquiry report Annexure P2/R5 was
11. forwarded by respondent no. 5 to respondent no. 3 on 17.3.2021 stating that Income Tax Department had informed her that search action under Section 132 (1) of the Income Tax Act,1961 was conducted in the case of second petitioner on 15.1.2021 as he was involved in demonetized currency notes in lieu of huge commission and cash referred ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 5 to above was seized from his possession and from his bank lockers.
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12. The respondent No.5 also informed the respondent no.3 that in the bank account of petitioner no. 1 certain large sums of money were available.
13. The 3rd respondent then issued a charge memo on 9.6.2021 to petitioner no. 1 framing charges on the ground of violation of CCS (CCA), Rules, 1965, stating, inter alia, that the petitioner no. 1 lacks integrity and honesty and had acted in a manner unbecoming of a public servant.
Annexure P3 is article of charges.
14. Reply was filed thereto vide Annexure P4 by the petitioner no. 1.
15. The respondent No.6 addressed a letter dt. 22.12.2021 to the Chief Engineer, HPPWD, Kangra Zone at Dharamshala, who was employer of petitioner no. 2, informing the latter that on 15.1.2021 a raid was conducted by the Income Tax Department on the house of the petitioner no.2, who was working as Senior Assistant in his office, and a huge amount ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 6 of unaccounted cash was recovered from his house and bank lockers. He further stated that a request was received from .
respondent no.5Court where petitioner no. 1, wife of petitioner no. 2 was serving, that pursue action under the provisions of Prevention of Corruption Act,1988 for possession of this disproportionate assets; and in order to proceed further, the Chief Engineer, HPPWD Kangra Zone at Dharamshala should intimate whether any departmental action had been taken against petitioner no. 2 or not.
16. Thereafter, Inspector of Vigilance Department wrote Annexure P6 letter in May, 2022 to the Chief Engineer, HPPWD Kangra Zone at Dharamshala stating that the Vigilance Head Quarters through a letter dt. 5.4.2022 had directed his office to conduct a regular inquiry against petitioner no. 2 regarding acquisition of disproportionate assets on the basis of which a complaint is under inquiry in his office; that it was found that petitioner no. 2 and petitioner no. 1 had maintained accounts jointly as they were husband and wife; in order to conduct further inquiry, ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 7 the Chief Engineer should hand over certain statements in Form I to VI attached to his letter to petitioner no. 2 for .
entering relevant details in the provided columns of these statements; and after getting it filled from him, the said statements be sent back to his office for further action.
17. In this letter Annexure P6, there is reference to a letter dt. 18.12.2021 addressed by the respondent No.5 to the Vigilance Department to consider registering the FIR under Section 13 (i) (e) of the Prevention of Corruption Act, 1988 against petitioner no. 1.
Relief sought by petitioners
18. Seeking quashing of Annexures P5 and P6 and also letter dt. 18.12.2021, this writ petition has been filed by the petitioners.
Contentions of petitioners
19. Inter alia, it is contended by the petitioners as under:
(a) Respondent no. 5 had exceeded jurisdiction vested in her in writing the letter dt. 18.12.2021 with regard to petitioner no. 2;
::: Downloaded on - 27/06/2023 20:37:20 :::CIS 8(b) When Departmental proceedings are continuing against petitioner no. 1 on a particular set of allegations, .
which are expressly false and which would ultimately exonerate petitioner no. 1, there was no need to direct registering of an FIR against petitioners under the Prevention of Corruption Act, 1988;
(c) Petitioner no. 1 has no concern at all with the money found and as far as petitioner no. 2 is concerned, assessments have been finalized by the Income Tax Department which are pending in appeal before the Appellate Authority, and issuing the said letter dt.
18.12.2021 by respondent no.5 would amount to harassment of the petitioners;
(d) The impugned act on behalf of respondent no. 5 is a result of nonapplication of mind and also in violation of principles of legitimate expectation;
(e) There were no allegations made against the petitioners directly or even indirectly with respect to habitual accepting or obtaining gratification, accepting or ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 9 agreeing for accepting any valuable things dishonestly, or fraudulently misappropriating property entrusted to them .
being public servants, and so FIR under the Prevention of Corruption Act,1988 cannot be registered.
(f) The allegations by the Income Tax Department are only for collecting money in the shape of commission during the course of demonetization and they are not covered under Section 30 of the Prevention of Corruption Act,1988.
Stand of respondents no. 1, 3 and 6.
20. After referring to the search action under Section 132 of the Income Tax Act on the house property of the petitioners on 15.1.2021 and the seizure of cash from there and also from the lockers of petitioner no. 2, it is stated that respondent no. 3 through an office order dt. 9.1.2021 directed all the officials of Civil and Sessions Division to submit/disclose upto date moveable or immoveable properties as per Rule 18 of the CCS (Conduct) Rules, 1964;
that pursuant thereto, petitioner no. 1 filed her return of ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 10 assets and liability as on 13.12.2020 disclosing that she has Rs.38,12,886/ in a joint saving bank account with petitioner .
no. 2 maintained with Bandhan Bank, Dharamshala; a preliminary inquiry was conducted by respondent no. 5 to verify the veracity of allegations qua keeping unaccounted money in possession of petitioners; and during such inquiry, petitioner no. 1 had failed to give satisfactory explanation in respect of the cash found in their house.
21. It is stated that the then respondent no. 5 issued office letter dt. 18.12.2021 requesting respondent no.6 to consider registering of an FIR under Section 13 (i) (e) of the Prevention of Corruption Act, 1988, against the petitioner no.1 who had worked as Peon in her office at that point of time on the basis of a preliminary inquiry, primarily based on Assets and Liability Return filed by her up to 31.12.2020.
22. They also referred to Rule 7 of the HP Lokayukta Rules, 2019 requiring every public servant to file with competent Authority a Final Return of assets and liability ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 11 on or before 31st July of every year in Form No. VI and also to Section 44 thereof.
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23. It is therefore contended that referring the matter to the Vigilance Department of the State Government is not violative in law.
24. It is contended that after receipt of the letter dt.
18.12.2021, from respondent No. 5 a detailed inquiry has now been initiated by respondent no. 5 against the petitioner no.1 regarding disproportionate assets for taking further action as per the provisions of the Prevention of Corruption Act, 1988.
25. It is also contended that the Vigilance Department is entitled to seek information through controlling officer vide Annexure P6 regarding supplying of statements on Forms No. I to VI devised for assessing the disproportionate assets.
26. It is contended that letter dt. 18.12.2021 issued by respondent no. 5 is valid in law as she was performing solemn act as employer/controlling officer for conducting of fair inquiry and action as per law in order to save the image ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 12 of judiciary from being blemished and she cannot be said to have exceeded her powers in any manner.
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27. It is contended that inquiry in the matter is being conducted by the Vigilance Department in order to ascertain the source of receipt of the amounts in the bank account and bank lockers and more time is required to take a decision in the mater; and it cannot be said at this stage that property/cash found in the possession of the petitioners is not disproportionate to their known sources of income since the same was not being reflected in any income tax returns and assets and liability form submitted by the petitioners.
It is contended that the writ petition is filed with
28. malafide intention to prevent the respondents from taking legitimate action as per law and procedure and that the writ petition is premature.
29. It is further contended that the Vigilance Department can receive complaints of disproportionate assets from any source, including office head of an employee and can start ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 13 appropriate fact finding inquiry in such matters; evaluate the material and documents on record with a view to .
finding out if the facts emerging therefrom if taken on their face value disclose all ingredients constituting the alleged offence, and then on the basis of prima facie material register an FIR.
30.
conduct and conclude
r to
It is also contended that Income Tax Authorities would their inquiry with regard to assessment of due tax under the Income Tax Act, 1961, but respondents have to see whether the act and conduct of the petitioners is liable for any departmental action or vigilance inquiry for allegedly possessing assets disproportionate to their known sources of income. It is stated that the departmental action and the investigation by the Vigilance Department are both independent in nature from the action of the Income Tax Authorities and cannot be intermingled or stopped.
Stand of respondents no. 3 and 5.
::: Downloaded on - 27/06/2023 20:37:20 :::CIS 1431. It is the stand of respondents no. 3 and 5 that the petitioner no.1 who was working as peon at that relevant .
time under respondent no. 5 was found to have money disproportionate to her/ family income and intimation regarding her moveable and immoveable property/assets had not been given by her to the office of respondents no. 3 and 5 as per Rule 18 of the CCS (Conduct) Rules, 1964 and this was a serious misconduct on the part of petitioner no. 1 which reflected upon the integrity and honesty of petitioner no. 1 warranting investigation.
32. It is further contended that respondent no. 3, being appointing and disciplinary authority of petitioner no. 1, deputed respondent no. 5 to correspond with the Income Tax Department and to hold a discreet inquiry about the allegations against the petitioner no. 1 and to submit a report vide Annexure R3 and respondent no. 5 vide Annexure R4 submitted a discreet inquiry report.
33. It is stated that all the staff members of all courts had been directed to submit assets and liability statements ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 15 under Rule 18 of the CCS (Conduct) Rules, and though petitioner no. 1 had filed such statement, she did not .
disclose any other property in her name except the cash deposited in her Bandhan Bank amounting to Rs.38,12,886/; that she failed to give explanation from where such large amounts had been deposited in her bank just Rs. 1 lac.
r to account. More so, when on 25.9.2021 her bank balance was
34. It is stated that the money credited in the bank account of petitioner no. 1 from 25.9.2019 till 31.12.2020 was Rs. 56,12,886/, as can be seen from Annexure R6; and in two other bank accounts one in Punjab National Bank she had Rs. 1,27,260/ as on 09.01.2021, and other in the State Bank of India, she had Rs. 17,57,176/.
35. It is stated that as per the available material, action can be initiated against petitioner no. 1 as she had income disproportionate to her status as peon/classIV employee since she could not have been in possession of such large sums of money in her bank account; and even if the bank ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 16 accounts were generally owned by the husband, a duty was cast upon her to disclose to her employer such deposits in .
her account. It is further stated that the recovery of large amount of cash from the Bandhan Bank suggests that petitioner no. 1 was not maintaining absolute integrity and honesty and was having income disproportionate to her under r to known sources of income for which action is liable to be initiated the Prevention of Corruption Act, 1988, apart from the departmental inquiry.
36. It is stated that the respondent No.3 had been directed by the Registrar of the High Court on 28/29.6.2021 to take action as the disciplinary authority against petitioner no. 1;
thereupon respondent no.3 had directed the respondent no.5 to register FIR against petitioner no. 1; and respondent no.5 had then addressed a letter dt. 18.12.2021 (Annexure R14) to the Vigilance Department of the State to lodge FIR against petitioner no. 1.
37. It is contended that letter dt. 18.12.2021 (Annexure R
14) addressed by the respondent No.5 to the Vigilance ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 17 Department only requested the Vigilance Department to register FIR against petitioner no. 1 and made no mention of .
registering FIR against petitioner no. 2. It is stated that there was no question of requesting the Vigilance Department to consider registering of an FIR against petitioner no. 2 since he did not belong to Judicial
38. department.
On merits it is contended that even if petitioner no. 2 had maintained bank accounts, since petitioner no. 1 is joint account holder of the said accounts, and there are huge credits in the said bank account which are hugely disproportionate to known sources of income of the petitioners, petitioner no. 1 cannot escape from liability.
Rejoinders filed by petitioners
39. Rejoinders have been filed by the petitioners refuting the pleas of the respondents.
Consideration by the Court
40. From the facts narrated above, it is clear that there was a raid by Income Tax Department in house property of ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 18 the petitioners at Dharamshala on 15.1.2021 and a substantial cash amount was found not only at the residence .
but also in the bank lockers in the Bandhan Bank, Dharamshala.
41. On the basis of news reports when this became known, respondent no. 5 on 18.1.2021 reported the matter to respondent no. 3 vide Annexure R1 and respondent no. 3 vide Annexure R3 dt. 19. 01.2021 asked respondent no. 5 to get information from the Income Tax Department and also to hold a discreet inquiry against petitioner no. 1.
42. Respondent no. 5 conducted discreet inquiry and submitted a report Annexure R4 on 07.03.2021 to respondent no. 3 mentioning about the seizure of cash from the petitioners' house and bank lockers.
43. It appears that assets and liability statement under Rule 18 of the CCS (Conduct) Rules, were directed to be filed by all the employees of all the Courts and petitioner no. 1 had filed the same on 15.02.2021, vide Annexure R6, but did not disclose any property other than cash deposits in her ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 19 Bandhan Bank account, Dharamshala amounting to R.38,12,886/ which was in a joint account with her .
husband.
44. Therefore, a charge memo was issued to her on 09.06.2021 alleging violation of the CCS (Conduct) Rules, 1964 for possessing wealth indicating that she did not act with honesty and integrity and these proceedings are being defended by petitioner no. 1.
r departmental
45. According to respondents no. 3 and 5 since assets possessed by the petitioner No.1 were disproportionate to her known sources of income, letter dt. 18.12.2021 was addressed by respondent no. 5 requesting the Vigilance Department to register FIR under the Prevention of Corruption Act,1988 against the petitioner no. 1 only.
46. We agree with the stand of the respondents that proceedings under the Income Tax Act, departmental proceedings and proceedings under the Criminal Law are independent of each other and since not even FIR is registered as up to date, writ petition is wholly premature.
::: Downloaded on - 27/06/2023 20:37:20 :::CIS 2047. Since it is not the case of the petitioners that any prosecution has been launched on the basis of the letter dt.
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18.12.2021 against petitioner no. 2, there cannot be any advance ruling on a possible prosecution under the Prevention of Corruption Act,1988 against the petitioners on the basis of the pleas raised by them.
48. A perusal of letter dt. 18.12.2021 filed as Annexure R 14 by the respondents shows that in the said letter the respondent no.5 had not made a mention petitioner no. 2 at all therein and had only requested the Vigilance Department to consider registering of an FIR under the Prevention of Corruption Act,1988 against petitioner no. 1.
Proceedings, if any, proposed by the Vigilance
49. Department against petitioner no. 2 cannot therefore be attributed to the letter dt. 18.12.2021 addressed by respondent no. 5 to respondent no. 6 though respondent no.
6 made a reference to the letter dt.18.12.2021 in his letter dt. 22.12.2021 (Annexure P5) addressed to the employer of petitioner no. 2 inquiring as to whether departmental action ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 21 was taken against petitioner no. 2 or not. Such mention was probably a mistake on his part.
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50. Therefore there is no need to declare the action of respondent no.5 in writing such a letter to the Vigilance department qua the petitioner no.2 as one without jurisdiction or authority.
51. It is settled law that the information as to commission of any offence including one of possessing disproportionate assets can be obtained by a prosecuting agency from any source including the office head of an employee such as respondent no. 5. Even if respondent no. 5 had in fact mentioned about petitioner no. 2 in the letter dt.1812.2021, it would not have made make any difference at all.
52. In any event, Annexure P5 also seeks only information from the employer of petitioner no. 2 as to whether any departmental action was taken against petitioner no. 2 by his employers. We do not see why such inquiry cannot be made in the light of the admitted fact of ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 22 raid happening on the properties of the petitioners and recovery of cash from their house and bank lockers.
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53. Likewise Annexure P6 request of the Inspector of the Vigilance Department to employer of petitioner no. 2 regarding supply of statement on Form no.I to VI devised for assessing disproportionate assets from the petitioner no. 2 cannot also be said to be invalid for any reasons merely because there is a reference therein to the letter dt.
18.12.2021 issued by respondent no. 5 therein.
54. By filing this writ petition without even an FIR being registered against them, it appears that petitioners want this Court to give a clean chit in the matter to them on all aspects, i.e. disciplinary action initiated against petitioner no. 1 and possible criminal proceedings against both of them, and pronounce them innocent without even having to face a trial. They seem to want an advance ruling, which this Court is not competent to grant. The petitioners have to face legal process as and when any action is initiated ::: Downloaded on - 27/06/2023 20:37:20 :::CIS 23 against them under the Prevention of Corruption Act and get an adjudication from the concerned Criminal Court.
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55. The decisions in State of Haryana and others vs. Bhajan Lal and others1 and Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others 2 cited by the learned counsel for the petitioners have no applied.
r to relevance at this stage and cannot be considered and
56. For all the aforesaid reasons, we do not find any merit in the writ petition and it is accordingly dismissed with cost of Rs.20,000/. to be paid to the HP State Legal Services Authority, Shimla, within four weeks from today.
(M.S. Ramachandra Rao) Chief Justice (Ajay Mohan Goel) Judge June 27, 2023.
(cm Thakur) 1 1992 Supp (1) SCC 335 2 (1998) 5 SCC 749 ::: Downloaded on - 27/06/2023 20:37:20 :::CIS