Jammu & Kashmir High Court
Narinder Kumar Mishra vs J&K; State Vigilance Commission & Anr. on 14 November, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
OWP No.855/2016
Date of order: 01.11.2017
Narinder Kumar Mishra
Versus
J&K State Vigilance Commission & anr.
Coram: Hon'ble Mr. Justice Tashi Rabstan, Judge.
Appearance:
For the petitioner(s) : Mr. Abhinav Sharma, Advocate.
For the respondent(s):Mr. K.S. Johal, Sr. Advocate, with Mr. Rajet Ramit,
Advocate.
i. Whether to be reported in Press/Media : Yes ii. Whether to be reported in Digest/Journal : Yes
1. Through the medium of this petition, the petitioner is seeking to quash Notice No.SVC/Comp-223/2016 dated 11.05.2016 issued by J&K State Vigilance Commission, respondent No.1 herein, whereby the petitioner herein has been directed to submit para-wise comments on the complaint filed by one Gourav Bhalla, respondent No.2 herein. Petitioner is also seeking quashment of the complaint filed against him by respondent No.2 before respondent No.1.
2. The facts as emerged from the record of writ file are that the petitioner had booked the Coppertone Hall and the open lawn of 17 Miles Hotel & Restaurant belonging to respondent No.2 herein, for the marriage ceremony of his daughter for 25.01.2015 and the agreed rate of catering for guests was at the rate of Rs.1450/- plus taxes per person. As per the complaint filed by respondent No.2, the total amount came to Rs.18,77,028/- plus Rs.1,01,623/-, out of which the petitioner made payment of Rs.8.25 lacs only, whereas the petitioner did not pay the balance amount of Rs.11,53,651/-. In April 2015, respondent No.2 also served a legal notice upon the petitioner for payment of OWP No.855/2016 Page 1 of 7 the said amount. Further, as per complaint, though the petitioner had declined to make the balance payment, he, however, conveyed to respondent No.2 that he is a top officer of the Forest Department and would help him in arranging timber for using the same by respondent No.2 in his business establishment. Further, as per complaint, respondent No.2 declined to be a part of corrupt practices and, thus, compelled by the circumstances filed a complaint against the petitioner herein before the J&K State Vigilance Commission, respondent No.1 herein. Respondent No.1, accordingly, issued Notice No.SVC/Comp-223/2016 dated 11.05.2016, impugned herein, to the petitioner directing him to submit para- wise comments on the complaint. Feeling aggrieved, the petitioner has filed the present writ petition.
3. With the consensus of learned counsel appearing for the parties, this case is admitted to hearing and is taken up for final hearing.
4. I have heard learned counsel appearing for the parties and also gone through the writ record.
5. The petitioner has questioned the issuance of notice by respondent No.1, whereby he has been directed to file para-wise comments on the complaint filed by respondent No.2 alleging therein that petitioner had declined to make balance payment of catering charges etc., instead, petitioner being top officer of the Forest Department had offered arranging illegal timber for using the same by respondent No.2 in his business establishment. The petitioner instead of filing response and appearing before the Commission has filed the present writ petition questioning the impugned notice on the ground that the Commission lacks jurisdiction to entertain such a complaint and that the dispute, if any, is of civil nature and not the one as alleged by respondent No.2.
6. A perusal of the complaint filed before the Commission reveals that the same has been filed under Section 5 of the J&K Prevention of Corruption Act, OWP No.855/2016 Page 2 of 7 Svt., 2006, more particularly under Section 5(1)(d) of the Act. Therefore, before proceeding further, it would be relevant to reproduce Section 5(1)(d) of the Act hereunder:
"5. Criminal misconduct.- (1) A public servant is said to commit the offence of criminal misconduct-
(a) ...
(b) ...
(c) ...
(d) if he, by corrupt or illegal means or by otherwise abusing his
position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage....."
7. Now it is to be seen whether the petitioner being a public servant had by corrupt or illegal means abused his official position so as to obtain for himself any pecuniary advantage.
8. In the writ petition though the petitioner has admitted the marriage ceremony of his daughter on 25.01.2015 in the hotel premises of respondent No.2 and has also admitted that an amount of Rs.1450/- per plate had been fixed as catering charges, the stand of petitioner is that he has already paid the entire amount to respondent No.2. He has further stated that if there was any outstanding amount, he was ready to pay the same if complete detail had been provided to him by respondent No.2.
9. In the complaint filed before the Vigilance Commission, it is the specific case of complainant-respondent No.2 that the petitioner herein had booked a function in the hotel of respondent No.2 to solemnize the marriage ceremony of his daughter on 25.01.2015 at the rate of Rs.1450/- per plate as catering charges and that the decoration charges was also to be borne by the petitioner herein. Further, it is the specific and admitted stand of complainant-respondent No.2 before the Commission that the petitioner had already paid an amount of OWP No.855/2016 Page 3 of 7 Rs.5.25 lacs as advance money till 20.01.2015, i.e., well before five days before the commencement said function; meaning thereby when the amount for the said function had been settled and when the petitioner had paid an amount of Rs.5.25 lacs, as per complainant-respondent No.2 himself, there was no such alleged offer on the part of petitioner for supplying illegal timber in lieu of the amount to be paid by the petitioner for the said function. Even complainant- respondent No.2 has also taken a specific stand before the Commission that after the said function was over, the petitioner further paid an amount of Rs.3.00 lacs. Thus, as per complainant-respondent No.2 himself, the petitioner in all had paid an amount of Rs.8.25 lacs towards the charges of said function.
10. A perusal of the writ file also reveals that complainant-respondent No.2 had through his counsel also served a legal notice upon the petitioner on 27.04.2015 calling upon him to make the balance payment, failing which a civil suit for recovery of the balance amount would be filed against him. Before proceeding further, I would like to reproduce a small portion of the said notice hereunder:
"..... My client has regularly been asking you to make the payment. Every time you have been telling that same will be paid by next day. This did not happen. Two days back you declined to pay the said amount. It is totally unfair. A person of your stature is not expected to do this. On you declining to make payment, my client is left with no option but to call upon you to make the payment."
11. The said notice came to be issued on 27.04.2015, i.e., more than three months after the said function and there was no whisper in the said notice regarding alleged offer on the part of petitioner herein for supplying illegal timber in lieu of the balance amount to be paid by the petitioner for the said function; meaning thereby, as per complainant-respondent No.2 himself, there was no such alleged offer on the part of petitioner to respondent No.2 even after more than three months of the said function, rather through notice it was OWP No.855/2016 Page 4 of 7 informed to the petitioner that if he fails to pay the balance amount, civil suit for recovery of the said amount would be filed against him.
12. Further, complainant-respondent No.2 has himself taken a stand in the notice (quoted above) that two days prior to the issuance of said notice, i.e., on 25.04.2015 the petitioner had declined to pay the balance amount. Once, as per respondent No.2 himself, the petitioner had declined to make the balance payment, if any, then how the question of making offer by the petitioner to respondent No.2 arose for supplying illegal timber to respondent No.2 to be used in his business establishment.
13. A perusal of the complaint filed before the Commission reveals that the same came to be filed in March, 2016, wherein, for the first time after about fourteen months of the said function, it has been alleged that the petitioner had made an offer to respondent No.2 for supplying illegal timber in lieu of the balance amount, if any. I would like to reproduce the relevant portion of paragraph-8 of the complaint hereunder:
"8. ...The applicant went again to him on 6th and 7th January, 2016 when after a discussion, he conveyed that the only way he can release the payment in favour of the applicant, is by way of providing timber to the applicant by illegal means....."
14. On one hand, the stand of complainant-respondent No.2 in the notice dated 27.04.2015 is that two days before issuance of said notice the petitioner had declined to make the payment and did not utter a word in the notice regarding any offer on the part of petitioner for supply of illegal timber to respondent No.2 in lieu of balance amount, whereas, on the other hand, in the complaint, which seems to be filed in March, 2016 before the Commission, the specific stand of complainant-respondent No.2 is that the petitioner had conveyed that he can provide illegal timber only in lieu of the balance amount.
OWP No.855/2016 Page 5 of 715. It is very strange that once there was no demand on the part of complainant-respondent No.2 regarding supply of alleged illegal timber for his business establishment, then how could the petitioner make such an illegal offer in absence such a demand. Once there was no such demand from complainant- respondent No.2 nor was he in need of the timber to be used in his business establishment, then how could petitioner make such an offer in absence of such a demand and insist for supplying of illegal timber in lieu of the balance amount.
16. Further, as per complainant-respondent No.2, the petitioner claimed himself to be a Divisional Forest Officer, whereas it is the specific stand of petitioner in the writ petition that he was never an employee of the Forest Department, rather he is serving as Incharge Manager, Chinore Farms in the Agriculture Department.
17. It seems complainant-respondent No.2 has levelled bald allegation against the petitioner herein, the same appears to be an afterthought, more particularly when nothing of the sort ever transpired between him and the petitioner nor respondent No.2 has produced any evidence to support his complaint. The complaint filed before the Commission, therefore, is nothing but concocted and fake one, having no substance, rather a tactic to pressurize the petitioner herein to recover the balance amount, if there is any, without adopting due course of law. The dispute, if any, is of civil nature for which the complainant-respondent No.2 cannot be allowed to resort to such illegal means to settle his business interest thereby giving it a different colour. Therefore, the complaint filed before the Commission cannot be said to have fallen within the four corners of Section 5(1)(d) of the J&K Prevention of Corruption Act, Svt., 2006, more particularly when the petitioner has averred in the petition itself that he is ready to pay the balance amount of catering charges etc., provided a complete detail is provided to him.
OWP No.855/2016 Page 6 of 718. Therefore, in view of what has been discussed above, the petition merits to be allowed. Accordingly, the same is allowed and Notice No.SVC/Comp- 223/2016 dated 11.05.2016 issued by the J&K State Vigilance Commission is hereby quashed. Consequently, the complaint shall also stand quashed. However, respondent No.2, if so advised, is at liberty to take such recourse as permitted by law. Connected miscellaneous petition, accordingly, stands disposed of.
Jammu (Tashi Rabstan)
01.11.2017 Judge
(Anil Sanhotra)
OWP No.855/2016 Page 7 of 7