Kerala High Court
Santhi G.Jaidev vs Union Of India on 15 November, 2010
Author: K. Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934
WP(C).No. 3031 of 2012 (D)
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PETITIONER:
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SANTHI G.JAIDEV, AGED 46 YEARS
SENIOR COMMANDANT,
GROUP COMMANDANT CISF GROUP HEAD QUARTERS,
COCHIN PIN 682037
BY ADVS.SRI.N. SUKUMARAN (SR.)
SRI.S. SHYAM
SRI.N.K. KARNIS
SRI. BOBBY MATHEW KOOTHATTUKULAM
RESPONDENT(S):
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1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY TO THE MINISTRY OF HOME AFFIARS,
26 MANSING ROAD, NEW DELHI 110011
2. THE DIRECTOR GENERAL OF CENTRAL INDUSTRIAL SECURITY FORCE,
CENTRAL INDUSTRIAL SECURITY FORCE HEAD QUARTERS,
BLOCK NO.13,CGO'S COMPLEX,LODHI NAGAR, NEW DELHI-110003
3. DEPUTY INSPECTOR GENERAL OF CENTRAL INDUSTRIAL SECURITY FORCE,
(MINISTRY OF HOME AFFIARS)WEST ZONE HEAD QUARTERS,
TALOJA COMPLEX,SECTOR 35,KHARGHAV, NAVI MUMBAI 400010
4. DEPUTY INSPECTOR GENERAL,
CENTRAL INDUSTRIAL SECURITY FORCE,
SOUTH ZONE HEAD QUARTERS,D.WING,1ST FLOOR
RAJAI BHAVAN,BASANT NAGAR,CHENNAI 600090
5. SRI.N.R.DAS, DIRECTOR GENERAL,
CENTRAL INDUSTRIAL SECURITY FORCE HEAD QUARTERS,
BLOCK NO.13,CGO'S COMPLEX,LODHI NAGAR, NEW DELHI 110003
BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
vk
WP(C).No. 3031 of 2012 (D)
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APPENDIX
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PETITIONER(S) EXHIBITS
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EXT.P1 TRUE COPY OF THE MEMORANDUM OF DATED 15.11.2010 ISSUED BY
THE 3RD RESPONDENT TO THE PETITIONER
EXT.P1(A) TRUE COPY OF THE LETTER DATED 19.11.2010 ISSUED BY THE 4TH
RESPONDENT TO THE PETITIONER.
EXT.P2 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE
THE 3RD RESPONDENT DT.29.11.2010
EXT.P3 TRUE COPY OF THE MEMORANDUM ISSUED BY THE 1ST RESPONDENT TO
THE PETITIONER DT.7.4.2011
EXT.P4 TRUE COPY OF REPORT DATED 21.9.2010 SUBMITTED BY
SHRI Y.N.SHARMA ENQUIRY OFFICER.
EXT.P5 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE
PETITIONER TO EXT.P3
EXT.P6 TRUE COPY OF THE ORDER OF THE CENTRAL VIGILANCE COMMISSION
DATED 29.6.1999
EXT.P7 TRUE COPY OF THE ORDER OF THE CENTRAL VIGILANCE COMMISSION
DATED 31.1.2012
EXT.P8 TRUE COPY OF THE COMMUNICATION ISSUED BY THE CENTRAL
VIGILANCE COMMISSION DT.11.10.2002
EXT.P9 TRUE COPY OF THE ORDER OF THE GOVERNMENT OF INDIA DATED
29.9.1992
EXT.P10 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE
CHIEF VIGILANCE COMMISSIONER DATED 2.8.2011
EXT.P11 TRUE COPY OF THE REPLY TO EXT.P10 DATED 18.8.2011
EXT.P12 TRUE COPY OF THE ANNUAL PERFORMANCE ASSESSMENT REPORT (APAR)
OF THE PETITIONER FOR THE YEAR 2009-2010
EXT.P12(A) A READABLE TYPE WRITTEN COPY OF THE MANUSCRIPT ART OF PAGE
8 OF EXT.P12
EXT.P13 TRUE COPY OF THE APPEAL FILED AGAINST EXT.P12 BY THE
PETITIONER DATED 29.10.2011
EXT.P14 TRUE COPY OF THE ORDER DATED 7.12.2011 OF THE 2ND
RESPONDENT.
EXT.P15 TRUE COPY OF THE DATED 10.1.2012 ISSUED BY THE 3RD
RESPONDENT.
EXT.P16. COPY OF CHAPTER III OF THE VIGILANCE MANUAL
BROUGHT OUT BY CENTRAL VIGILANCE COMMISSSION.
EXT.P17 COPY OF THE RELEVANT PAGES OF THE
MANUAL CONTAINING PARAGRAPH 1.6.1.
RESPONDENTS' EXHIBITS
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EXT.R1 (D).COPY OF THE ANNUAL PERFORMANCE ASSESSMENT REPORT (APAR) FOR
THE PERIOD FROM 10.06.2008 TO 31.03.2009.
EXT.R1(E). COPY OF THE U.O. NOTE DATED 06.08.2010 ISSUED BY THE
MINISTRY OF HOME.
EXT.R1 (F). COPY OF THE NOTE DATED 13.10.2010 ISSUED BY THE MINISTRY OF
HOME AFFAIRS (F).
/ TRUE COPY /
VK P.A. TO JUDGE
K. SURENDRA MOHAN, J.
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W.P(C) NO: 3031 OF 2012
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Dated this the 2nd April, 2012.
JUDGMENT
The petitioner who is working as a Group Commandant of the Central Industrial Security Force at the Group Head Quarters, Cochin has filed this writ petition challenging the disciplinary proceedings initiated against her. The disciplinary proceedings have been initiated against the petitioner on the basis of Ext.P3 charge memo. Ext.P3 has been issued on the basis of a preliminary report, Ext.P4. The allegations against the petitioner relate to the period that she was posted at the unit of the Central Industrial Security Force (CISF for short), Jawaharlal Nehru Port Trust (JNPT), Bombay.
2. According to the petitioner, she has maintained a record of unblemished service throughout her carrier. She had cleared her Civil Service Examination held in 1989 in the first attempt and was selected as an Assistant Commandant. She has all along maintained a meritorious and blemishless record of service. According to her she has been down gradedby the fifth respondent in the Annual Performance Assessment Report (APAR) for the year WPC 3031/2012 2 2009-2010 . The allegation of the petitioner is that the same has been done to diminish her prospects of being considered for promotion to the post of Deputy Inspector General, on malafide intentions.
3. According to the petitioner, the fifth respondent with the active assistance of Shri. Y.N.Sharma, the then Deputy Inspector General, West Zone had conducted a number of enquiries into certain anonymous complaints alleged to have been received by them. The complaints contained allegations of misconduct against the petitioner relating to her tenure of office at Mumbai. According to the petitioner, the proceedings initiated against the petitioner as per Exts.P1 and P1(a) also suffer from total lack of jurisdiction. She has replied to the said communications by Ext.P2. The proceedings are being continued, though there are no grounds for doing so. Therefore, she has filed this writ petition seeking the issue of appropriate directions for setting aside Exts.P3 and P4.
4. A counter affidavit as well as an additional counter affidavit have been filed on behalf of the respondents. According to the respondents, the enquiry that was instituted against the petitioner was under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (CCS(CCA) Rules for short) for the commission of very grave misconduct and violation of WPC 3031/2012 3 established procedures of the organisation. The charges according to the respondents were framed on the basis of prima facie evidence gathered during the course of a preliminary enquiry conducted by an officer in the rank of Deputy Inspector General of the CISF. Though the preliminary enquiry was conducted on the basis of anonymous complaints, upon enquiry it was found that the allegations were supported by substantive evidence and therefore charges were framed against her. It is the specific case of the respondents that since the complaint against the petitioner related to administrative matters and did not involve a vigilance complaint, the competent authority had directed the conduct of a preliminary enquiry. The report of such enquiry was placed before the disciplinary authority who ordered initiation of major penalty proceedings against the petitioner. Particular reliance is placed on Chapter IV of Vigilance Manual, 2005 to contend that the procedure adopted is permissible and free from any legal infirmity. According to the respondents, concurrence of the vigilance is required only in cases where the allegations involve a 'vigilance angle'. Therefore, it is contended that the impugned proceedings do not call for any interference at the hands of this Court. The enquiry that is contemplated would provide ample opportunities to the petitioner to adduce evidence, to place her contentions in the proper WPC 3031/2012 4 perspective and to defend herself properly. Therefore, the respondents pray that the writ petition is only liable to be dismissed.
5. I have heard Shri. N.Sukumaran, Senior Advocate who appears for the petitioner as well as Adv. T.Sanjay who appears for the respondents, in detail. I have also considered the rival contentions advanced before me, anxiously.
6. It is not in dispute that the entire proceedings against the petitioner have been initiated on the basis of anonymous complaints. It is contended that there were a number of anonymous complaints against the petitioner. A decision was taken to conduct a preliminary enquiry into the genuineness of the allegations contained in the anonymous complaints. Ext.P4 is the report of the said preliminary enquiry. A perusal of Ext.P4 shows that the nature of allegations listed therein number as many as 39. Many of the allegations listed therein allege corruption against the petitioner. Allegation No:3 relates to collection of money from ship builders and vendors for the senior Commandant and her husband through constable K.V.V.Rao. Allegation No:4 relates to involvement of constable K.V.V.Rao with smugglers and anti social elements for benefits to senior Commandant and her husband. Allegation No:5 relates to illicit amounts allegedly handled by the WPC 3031/2012 5 petitioner. Allegation No:6, 7, 8, 9, 10, 12, 13, 15, 16, 17, 18, 21, 22, 27, 33, 34 are all allegations that either allege criminal offences under various enactments or serious charges of misconduct with criminal overtones. Admittedly the allegations were all on the basis of anonymous complaints received by the authorities. In the nature of the allegations referred to in Ext.P4, a proper investigation through the Police should have been ordered, if at all there was any substance in the allegations. However, the said course was not adopted. Instead, a preliminary enquiry Ext.P4 was conducted. Thereupon, all the serious charges made have been found to be baseless. Therefore they have been dropped. The charges that survive find their place in Ext.P3. The charges now available in Ext.P3 are not grave in comparison to the allegations that have been discarded. The above being the position, the contention of the counsel for the respondent that the procedure prescribed in the Vigilance Manual for investigating or taking action on anonymous complaints were not required to be followed or cannot be accepted. It was only after completion of the preliminary enquiry that the authorities could have realised that the present charges that survive are not serious. As noticed above, many of the allegations listed in Ext.P4 have a 'vigilance angle' and required proper investigation. If the contention of the learned counsel for the respondents that the WPC 3031/2012 6 charges were grave is accepted it has to be held that the manner in which the said allegations were investigated does not show that they were enquired into with any seriousness.
7. The senior counsel who appears for the petitioner has drawn my attention to Ext.P9 office memorandum of the Government of India dated 29-9-1992 which stipulates how anonymous/pseudonymous complaints are to be dealt with. Paragraph 2(a) of Ext.P9 lays down as follows:-
"Many anonymous/pseudonymous complaints are false and malicious and very often, such complaints are not a reliable source of information and enquiries into such complaints do have an adverse effect on the morale of the services. The Government of India are, therefore, of the view, that generally, no action is warranted on anonymous/pseudonymous complaints against Government Servants and they are to be filed."
Ext.P6 dated 29-6-1999 issued by the Central Vigilance Commission also directs that no action should be taken on anonymous and pseudonymous complaints and that they should be ignored and only filed. Ext.P6 further cautions the authorities in the following words:-
"However, there is a provision available in this order that in case such complaints contain verifiable details, they may be enquired into in accordance with WPC 3031/2012 7 existing instructions. It is, however, seen that the exception provided in this order has become a convenient loophole for blackmailing. The public servants who receive the anonymous/pseudonymous complaints, generally, follow the path of least resistance and order inquiries on these complaints. A peculiar feature of these complaints is that these are resorted to especially when a public servant's promotion is due or when an executive is likely to be called by the Public Enterprises Selection Board for interview for a post of Director/CMD etc. If nothing else, the anonymous/pseudonymous petition achieves the objective of delaying the promotion if not denying the promotion. These complaints demoralise many honest public servants."
Ext.P7 also contains a similar caution issued by the Central Vigilance Commission. It has been reiterated that under no circumstances should any investigation be commenced or action initiated on anonymous/pseudonymous complaints. The Central Vigilance Commission has issued a further clarification as per Ext.P8 dated 11-10-2002 in the following words:-
"However, if any department/organisation proposes to look into any verifiable facts alleged in such complaints, it may refer the matter to the Commission seeking its concurrence through the CVO or the head of the organisation, irrespective of the level of employees involved therein."
WPC 3031/2012 8
8. The above directives have been incorporated into the Vigilance Manual, Chapter III of which has been produced in these proceedings as Ext.P16. In view of paragraph 3.1 thereof, it is clear that receipt of information about corruption, malpractice or misconduct on the part of the public servants from whatever source would be termed as complaint. Paragraph 3.4.1 requires every Vigilance Section/Unit to maintain a Vigilance Complaints Register in the prescribed form. The register in Form CVO-1 contains two separate parts, category 'A' and category 'B'. Category A includes such employees against whom Commission's advice is required. Category B includes such employees against whom Commission's advice is not required. Paragraph 3.4.3 makes it clear as to what are the purely administrative matters. The relevant portion reads as follows:-
"Complaints, which relate to purely administrative matters or technical lapses, such as late attendance, disobedience, insubordination, negligence, lack of supervision or operational or technical irregularities, etc. should not be entered in the register and should be dealt with separately under 'non-vigilance complaints."
Further, the procedure to be adopted for taking action on anonymous/pseudonymous complaints has been provided in 3.8.1. It has been provided that the concurrence of the Vigilance WPC 3031/2012 9 Commission is necessary for initiating such action if the complaint is proposed to be acted upon. The relevant portion of the said paragraph reads as follows:-
"However, if any department/organisation proposes to look into any verifiable facts alleged in such complaints, it may refer the matter to the Commission seeking its concurrence through the CVO or the head of the organisation, irrespective of the level of employees involved therein."
Paragraph 3.8.4 deals with an entirely different situation where the administrative authority has ordered the conduct of an investigation into a pseudonymous complaint thinking that the same was a genuine, signed complaint. In such cases, if the investigation finds prima facie substance in the allegations, then the Vigilance Commission should be consulted as to the further course of action to be taken. However, this provision applies only to pseudonymous complaints.
9. It is worth noticing that none of the above procedures stipulated by the Vigilance Manual has been followed in the present case. On receipt of the anonymous complaints, preliminary enquiries appear to have been conducted. When the preliminary enquiries could not substantiate the allegations, an enquiry was conducted by the Deputy Inspector General. On the basis of the WPC 3031/2012 10 materials gathered on such a preliminary enquiry, Ext.P3 has been issued.
10. According to the counsel for the respondents, Chapter IV of the Vigilance Manual confers ample powers on the respondents to issue the impugned proceedings. It is in exercise of the said powers that Exts.P3 and P4 have been issued. However, a reading of Chapter IV shows that the said chapter is to apply after a decision has been taken to investigate the allegations. The opening words of paragraph 4.1.1 states that, "as soon as a decision has been taken to investigate the allegations contained in a complaint, it would be necessary to decide whether the allegations should be inquired into departmentally or whether a police investigation is necessary." The decision to investigate the allegations contemplated above would have to be taken in accordance with Ext.P16 or Chapter III of the Vigilance Manual. Therefore, paragraph 4.1.2 relied on by the respondents cannot sustain the impugned proceedings.
11. A further contention is put forward that the impugned action has been initiated in Rule 14(3) of the CCS(CCA) Rules. The said rule also has no application to the facts of the present case for the reason that the same is a general provision for the purpose of regulating the enquiry that is proposed to be conducted. However, WPC 3031/2012 11 before deciding whether to hold an enquiry or not, the provisions of Chapter III of the Vigilance Manual are required to be complied with. Since the proceedings are only at the stage of issue of a charge memo Ext.P3, Rule 14(3) relied on by the counsel also cannot sustain Exts.P3 and P4.
12. In the present case, as already found the anonymous complaints received against the petitioner have been proceeded with by ordering a preliminary enquiry. Ext.P4 is the report of the said enquiry. The said enquiry has been instituted without complying with the provisions of Chapter III or the directives and orders issued by the Government. The orders issued have noticed the dangers and pit falls in adopting a procedure as done in the present case. The orders Exts.P6, P7, P8 and P9 have noticed the fact that such anonymous complaints are made at a crucial point of time in the service of a Government Servant where he is about to be considered for promotion or for some other advancement in his carrer. It is worth noticing that the anonymous complaints in the present case also have surfaced at a point of time when the petitioner was due for being considered for promotion as a Deputy Inspector General. The context in which the complaints have surfaced and the perfunctory manner in which they have been handled, in gross violation of the mandatory procedures stipulated WPC 3031/2012 12 by Ext.P16, vitiates the entire proceedings. Exts.P3 and P4 are therefore found to be unsustainable.
13. For the above reasons, this writ petition is allowed, Exts.P3 and P4 are quashed. Needless to say that the setting aside of Exts.P3 and P4 is without prejudice to the power of the authorities to initiate fresh action in accordance with law, if the situation warrants any such action.
Sd/-
K. SURENDRA MOHAN
Judge
jj /True copy/
P.S.to Judge
WPC 3031/2012 13