Madras High Court
Anti Corruption Movement By Its vs The Government Of Tamil Nadu By Its on 16 November, 2012
Author: Aruna Jagadeesan
Bench: Elipe Dharma Rao, Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2012
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
WP.No.5753/2011
WPMP.Nos.1 to 3/2011
Anti Corruption Movement by its
General Secretary, Chennai-93 Petitioner
Vs
1.The Government of Tamil Nadu by its
Home Secretary, Chennai-2
2.The Government of Tamil Nadu by its Secretary
Rural Development and Panchayat Raj Department
Secretariat, Chennai-2
3.The Vigilance Commissioner, Government of Tamil Nadu
Secretariat, Chennai-2
4.The Director of Vigilance and Anti Corruption, Chennai-28
5.The District Collector, Nagapattinam
6.S.Ravi, President, Alalasundaram Panchayat
29, Alalasundaram, Achalpuram (P.O)
Sirkali Taluk, Nagapattinam 609101
7.The Controller and Auditor General of India
Pocket-9, Deen Dayal Upadhyay Marg
New Delhi 110124 Respondents
Prayer:- This Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, (i) directing the 4th Respondent to register FIR or cause, by issuing appropriate circular, registration of FIR by its subordinates, forthwith on receipt of information in writing from any person, disclosing commission of cognizable offences punishable under the Prevention of Corruption Act, 1988 against any Government Servant of any category or any Public Servant as mandated under Section 154 of Cr.PC 1973, without expecting any orders from any authority including the 1st Respondent therefor and (ii) directing the 5th Respondent to take immediate action to remove the 6th Respondent from the Office of the President of Alalasundaram Village Panchayat, Kollidam Panchayat Union, Nagapattinam District, in exercise of power under Section 205 of the Tamil Nadu Panchayats Act, 1994.
For Petitioner : Mr.N.Subramaniyan
For Respondents : Mrs.Sree Jayanthi, SGP-RR1to5
Mr.Dalit Tiger C.Ponnusamy-R6
ORDER
ARUNA JAGADEESAN, J.
This Writ Petition is filed under Article 226 of the Constitution of India as a Probono Publico, praying to issue a Writ of Mandamus, (i) directing the 4th Respondent to register FIR or cause, by issuing appropriate circular, registration of FIR by its subordinates, forthwith on receipt of information in writing from any person disclosing commission of cognizable offences punishable under the Prevention of Corruption Act, 1988 against any Government Servant of any category or any Public Servant as mandated under Section 154 of Cr.PC 1973, without expecting any orders from any authority including the 1st Respondent therefor and (ii) directing the 5th Respondent to take immediate action to remove the 6th Respondent from the Office of the President of Alalasundaram Village Panchayat, Kollidam Panchayat Union, Nagapattinam District, in exercise of power under Section 205 of the Tamil Nadu Panchayats Act, 1994.
2. The Petitioner is Anti Corruption Movement, Chennai-93 represented by its General Secretary. The averments as stated in the affidavit filed in support of this Writ Petition are that one A.Elayaraja, who is one of the members of the Petitioner Association, has informed the Petitioner about the corrupt practices committed by the 6th Respondent, who is the President of the Alalasundaram Panchayat, in connivance with the Officials in the execution of various schemes in the said Panchayat. The said member has sought information on various aspects on various schemes executed by the 6th Respondent and made complaints about the corrupt practices of the 6th Respondent to various authorities to take action, but however, no action was taken by the authorities and the 6th Respondent is continuing these illegalities till date.
3. In the affidavit, it is further stated that the Petitioner took up the issue and made representations to the 5th Respondent, District Collector, Nagapattinam District to take action to remove the 6th Respondent from his post and has narrated a few instances and alleged corrupt practices by the 6th Respondent as under:-
a)Public funds were looted by the 6th Respondent by falsifying "Nominal Muster Roll" (NMR), by forging the attendance of the citizens.
b)Public funds were looted in the de-silting work of Alalasundaram Vaaikkaal under the National Rural Employment Guarantee Act (hereinafter referred to as NREGA) Scheme.
c)Abuse of power in the implementation of Indira Gandhi Memorial Group Houses Scheme.
d)Demand acceptance of bribe for allotting houses constructed at Alalasundaram Panchayat under the Indira Gandhi Memorial Group Houses Scheme.
4. It is further averred in the affidavit that the Petitioner has given a representation on 16.11.2009, complaining about the illegalities and corrupt practices committed by the 6th Respondent to the 3rd Respondent herein, who in turn, forwarded the same to the 2nd Respondent and thereafter, no action was taken. The reminder sent by the Petitioner on 15.4.2010 and again on 20.5.2010 to the Respondents 2 to 3 and 5 proved futile. The 5th Respondent has failed to remove the 6th Respondent from his Post, invoking powers under Section 205 of the Tamil Nadu Panchayats Act, 1994, but only caused a field inspection and found a loss of Rs.6,88,868/- by way of illegal expenditure made by the 6th Respondent and consequently, directed the 6th Respondent to remit the said amount, but the 6th Respondent had failed to remit the amount till 19.11.2010. The Respondents 2 to 3 and 5 have failed to perform their basic duties cast on them. The Petitioner has further stated that the 2nd Respondent is not interested to take any action in this regard and therefore, the Petitioner has approached this court by filing this Writ Petition for appropriate orders.
5. In the counter filed by the 4th Respondent, the Vigilance Commissioner, Chennai, it is stated that the petition dated 03.12.2010 submitted by the Petitioner has been forwarded to the Chief Secretary to Government on 7.1.2011 vide Letter No.30511/PUB/2010/TR as per the instructions issued in Government Letter No.58124/N/2000-2.
6. In the counter filed by the 5th Respondent, the Director of Vigilance and Anti Corruption, Chennai, it is denied that no action has been taken against the 6th Respondent on the allegations made by the Petitioner. It is stated that in fact, the Assistant Director of Panchayats has inspected the accounts of the Alalasundaram Panchayat and detected so many irregularities. It is further stated that there were irregularities in maintaining the accounts and thus, there was a financial loss caused to the said Panchayat to the tune of Rs.6,88,848/- as detailed under:-
Pursuant to that, according to this Respondent, necessary orders have also been issued by the 5th Respondent, directing the 6th Respondent to remit the loss of Rs.6,88,848/- vide RC.No.2016/A3/AD(P) dated 19.7.2010. Further, on a representation by the 6th Respondent, the Assistant Director (Audit) has conducted a special audit and found that there was actual excess expenditure of Rs.5,02,589/-. According to the provisions contained under Sections 193 and 242 sub section 2(XVII) of the Tamil Nadu Panchayat Act, 1994 and Rule 3(i)(a), a surcharge notice was issued by the 5th Respondent vide Rc.No.17/A2/11/Audit dated 25.2.2011 to the 6th Respondent to remit the surcharge amount and follow up action has been taken, which is under progress. It is further stated that enquiry has been conducted regarding the allegations in handling of NMRs under MGNREG Scheme and the selection of beneficiaries under IAY, etc and final order is yet to be passed. It is further stated that huge money has been allotted under NREGA Scheme and detailed guidelines and procedures have been issued for implementation of the scheme. The expenditure made under the above said scheme is also subjected to annual audit, besides special audit. Whenever there is any complaint regarding the irregularities, action is being taken by the competent authorities, who are executing the work and supervising the work. It is also pointed out that the 6th Respondent can be removed from holding the post of President of Village Panchayat only after observing the formalities laid down under Section 205 of the Tamil Nadu Panchayat Act, 1994. It is further stated that in regard to the loss of revenue due to repetition of payment under NREGA, a special enquiry has been conducted by the Assistant Project Officer and the report is also under the examination of the 5th Respondent for final orders and after taking final decision, appropriate action will be taken against the 6th Respondent.
7. It is also brought to the notice of this court that a First Information Report has been registered against the 6th Respondent on the complaint given by one Ratna Mala, Block Development Officer, Kollidam, in Cr.No.244/2012 for the offence under Section 406 of IPC on 1.6.2012 on the file of the A.K.Chatram Police Station.
8. The facts and circumstances of the present case do indicate that it is of utmost public importance and the investigation into every accusation made against the 6th Respondent must be conducted and completed expeditiously. It is needless to point that it is the duty of the 4th Respondent to expeditiously investigate into every aspect and when on complaint, private or otherwise, the grievance is voiced before it regarding corruption against the public servant, the 4th Respondent shall do the needful taking all necessary steps to investigate the case, file complaint, obtain sanction and thereafter, file the charge sheet. It is needless to mention that things should be done within the statutory powers of the investigating agency acting under the Prevention of Corruption Act, 1988, if prima facie offence under the Act is deducted.
9. The very prayer of the petitioner, to register FIR against any Government Servant of any category or any public servant, when a complaint of cognizable offence is made against them, and proceed to prosecute them, without expecting any orders from any authority, is in the nature of nullifying the procedure of obtaining 'sanction' to prosecute public authorities, provided for under various laws of the land in force.
10. Admittedly, the sixth respondent, against whom allegations have been made and even a criminal case came to be registered, is the President of Alalasundaram Panchayat. Section 230 of the Tamil Nadu Panchayats Act, mandates obtaining 'sanction' from the authority concerned, for prosecuting the President or the Exeucutive Authority etc. of a Panchayat. For better understanding, we shall extract hereunder the said Section:
"230. Sanction of prosecution.- (1) When the President or the Executive Authority or the Chairman or Vice Chairman of a Panchayat Union Council or District Panchayat or the Commissioner or the Secretary of any member is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government.
(2) When according previous sanction under sub-section (1), it shall be open to the Government to direct by order that the President, Executive Authority, Chairman, Vice Chairman or Commissioner or the Secretary, as the case may be, shall not discharge his duties as such until the disposal of the case."
11. The language of this Section is clear and unambiguous, mandating 'sanction' to prosecute the President and other authorities concerned with the panchayat. Section 19 of the Prevention of Corruption Act, inter alia, provides for previous sanction for prosecution and such sanction is necessary if a person is employed in connection with the affairs of the Union/State. Section 197 of the Criminal Procedure Code is the corresponding provision for previous sanction of a public servant for prosecution of offences in a criminal trial. When there are authorities competent to remove public servants and to grant sanction for their prosecution, the requirement of such sanction precludes Courts from taking cognizance of the offences, in the absence of such sanction and in fact, as could be seen from the above Section 230(1) of the Tamil Nadu Panchayats Act, there is complete bar on the Court to take cognizance of such offence, in the absence of previous sanction of the Government.
12. While such being the well established mandate of law of the land, the petitioner, under the garb of this probono publico, is trying to declare all such established legal procedure a nullity, which cannot, at any stretch of imagination, be permitted.
13. With regard to the prayer of the petitioner that the sixth respondent shall be removed by the District Collector, in exercise of his powers under Section 205 of the Tamil Nadu Panchayats Act, 1994, it is to be mentioned that since allegations of misuse of power and office are made against the sixth respondent, and even in the counter affidavit, the District collector has admitted that the authorities have found irregularities and loss of money to the Government, it is for the 5th respondent/District Collector to proceed against the 6th respondent in the manner known to law, of course, by strictly adhering to the avowed principles of audi alteram partem and the detailed procedure enumerated under Section 205 of the Tamil Nadu Panchayats Act.
14. Coming to the case on hand, the averments made in the counter affidavit filed by the 5th Respondent clearly show that the 5th Respondent has already taken action regarding the irregularities and lapses on the part of the 6th Respondent pointed out by the Petitioner and the investigation is also pending in the criminal case registered against the 6th Respondent. If a person is aggrieved that proper investigation has not been made by the Officer of the Police Station concerned, there are enough safeguards in the Code of Criminal Procedure to protect the interest of the complainant and it is not as if the Petitioner is without any remedy. In case the Petitioner is aggrieved by the inaction of the Police concerned or the 5th Respondent, it would be open to them to file appropriate proceedings to redress their grievance before appropriate legal forum.
For the aforesaid reasons, we are of the view that the Petitioner has not made out a case for issue of a Writ of Mandamus as prayed for in this Writ Petition and as such, this Writ Petition is liable to be dismissed and accordingly, it is dismissed with the above observations. No costs. Consequently, the connected MPs are closed.
[E.D.R., J] & [A.J., J] 16.11.2012 Index:Yes/No Web:Yes/No Srcm To: 1.The Home Secretary, The Government of Tamil Nadu, Chennai-2
2.The Government of Tamil Nadu by its Secretary, Rural Development and Panchayat Raj Department, Secretariat, Chennai-2
3.The Vigilance Commissioner, Government of Tamil Nadu Secretariat, Chennai-2
4.The Director of Vigilance and Anti Corruption, Chennai-28
5.The District Collector, Nagapattinam
6.S.Ravi, President, Alalasundaram Panchayat, 29, Alalasundaram, Achalpuram (P.O), Sirkali Taluk, Nagapattinam 609101
7.The Controller and Auditor General of India, Pocket-9, Deen Dayal Upadhyay Marg, New Delhi 110124 ELIPE DHARMA RAO, J.
AND ARUNA JAGADEESAN, J.
Srcm Pre Delivery Order in WP.No.5753/2011 16.11.2012