Jammu & Kashmir High Court
Mohinder Singh And Anr vs State Th. Accountability Commission ... on 4 January, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 727 OF 2012 AND OWP No. 804 OF 2012 AND OWP No. 242 OF 2012 1. Mohinder Singh and anr 2. Dr. Manohar lal Sharma 3. Peerzada Mohd. Sayeed 4. Satvir Gupta 5. Suman Lata Bhagat 6. Vikas Behal 7. Rattan Lal Tickoo 8. Sheikh Rafiq Ahmed Petitioners 1.State Th. Accountability Commission and ors 2.State Th. Accountability Commission and ors 3.State Th. Accountability Commission and ors 4.J&K Accountability Commission and ors. 5.State Th. Accountability Commission and ors 6.State Th. Accountability Commission and ors 7.State Th. Accountability Commission and ors 8.State of J&K and anr Respondent !Mr.S.K.Shukla, Advocate Mr. B.S. Salathia, Sr. Advocate with Mr. Ashish Sharma, Advocate Mr. D.C. Raina, Sr. Advocate with Mr. Anil Verma, Advocate Mr. U.K. Jalali, Sr. Advocate with Ms. Neha Bakshi, Advocate Mr. P.N. Raina, Sr. Advocate with Mr. J.A. Hamal, Advocate Mr. Abhinav Sharma, Advocate Mr. Virender Bhat, Advocate Mr. Ajay Sharma, Advocate ^Mr.Gagan Basotra, Sr. AAG Mr. Sunil Sethi, Sr. Advocate with Ms.Veenu Gupta, Advocate Mr. S.S. Lehar, Sr. Advocate with Mr. S. Meharban Singh, Advocate Mr. D.S. Thakur, Sr. Advocate with Ms. Aruna Thakur, Advocate Mr.S.S. Ahmed, Advocate Mr. H.C. Jalmeria, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 04.01.2013 :J U D G M E N T :OWP No. 727/2012
c/w OWP No.804/2012 OWP No.242/2012 OWP No.956/2006 OWP No.902/2006 OWP No.72/2007 OWP No.94/2007 OWP No.64/2007
1. Mohinder Singh and anr. Vs. State Th. Accountability Commission and ors.
2. Dr. Manohar lal Sharma Vs. State Th. Accountability Commission and anr.
3. Peerzada Mohd. Sayeed Vs.State Th. Accountability Commission and ors.
4. Satvir Gupta Vs.J&K Accountability Commission and ors.
5. Suman Lata Bhagat Vs. State Th. Accountability Commission and anr.
6. Vikas Behal Vs State Th. Accountability Commission and anr.
7. Rattan Lal Tickoo Vs.State Th. Accountability Commission and anr.
8. Sheikh Rafiq Ahmed Vs. State of J&K and anr.
1. Whether the Accountability Commission established under Jammu and Kashmir Accountability Commission Act, 2002, has power to suo-moto direct investigation, inquiry or proceedings against a public functionary under the Act, is the question that calls for an answer in the writ petitions on hand. In all the petitions, the Accountability Commission (hereinafter, the Commission) has suo-moto initiated proceedings under the Act against the petitioners.
2. Before an effort is made to find answer to the pivotal question on which fate of writ petitions on hand hinges, it would be appropriate to make a brief survey of background facts.
3. Shri Mohd. Shafi Indrabi filed a complaint being No.J- 115/2006 before Accountability Commission under Section 11 of the Act, against Smt. Sunali Kumar, Principal Secretary Health and Medical Education Department and Ranjit Kour, Ex- Principal/tutor of AMT School, Srinagar, alleging financial irregularities by the respondents while running affairs of AMT School, Srinagar and violation of rules in making admissions in AMT, School. The Commission on 3rd March 2006, on perusal of the complaint, record made available by the parties and after hearing counsel for the parties opined that the complaint disclosed a fit case in which regular inquiry was required to be conducted not only against the respondents but also against Smt. Suman Lata Bhagat Minister for Health and Medical Education present petitioner, Mr. Abdul Gani Sofi, Minister for Health and Medical Education, Shri Vikas Bhagat - PRO of Minister for Health and Medical Education, and Mst. Halima, Principal AMT, School, Srinagarsuccessor in office of Smt. Ranjit Kour respondent in the complaint. The Commission, accordingly, arrayed Smt. Suman Lata Bhagat and three others as respondents 3 to 6 in the complaint and directed a notice to be issued to the newly added respondents. Smt. Suman Lata Bhagat petitioner- herein questions the jurisdiction of the Commission to take suo- moto action against the petitioner on the ground that the Commission does not have any such power and jurisdiction. Petitioner, accordingly, seeks quashment of order dated 3rd March, 2006, whereby she and three others were arrayed as respondents 3 to 6 and regular inquiry initiated against them.
4. The Commission received two anonymous complaints sometime in 2006, leveling allegations of corruption and acquisition of estate disproportionate to known source of income against Shri Satvir Gupta formal DIG Doda-Udhampur Range. The Commission on 6th December, 2006 entertained the complaint registered it as complaint No. J-54/2006 to Commissioner Vigilance to get the allegations secretly investigated through an officer not below the rank of IGP and submit the report at the earliest. Shri Gupta aggrieved with the order dated 6th December, 2006, seeks its quashment on the ground that Commission lacks jurisdiction to entertain the complaint. He also questions vires of Regulation 9 of Jammu and Kashmir Accountability Commission Regulations 2005.
5. The Commission on 10th March, 2006 received an anonymous complaint against Shri B. S. Dua MD Jammu and Kashmir Small Industries Development Corporation (SICOP) and other officers of the Corporation, alleging misappropriation of crores of rupees, backdoor appointments and use of private vehicles on payment owned by Mr. Dua in running affairs of the Corporation. The Commission entertained the complaint, registered it as complaint No. 617 dated 13th March, 2006 and amongst others issued notice to Shri R. L. Tikoo GM SICOP, Jammu, requiring him to appear in person and submit his comments in reply to the complaint on 8th December, 2006. Shri Tikoo aggrieved with the cognizance taken by the Commission on an anonymous complaint and issuance of notice dated 2nd December, 2006, has come up with a writ petition registered as OWP No. 94/2007. Mr. Tikoo questions jurisdiction of the Commission to entertain and proceed on an anonymous complaint and also questions vires of regulation 9, Jammu and Kashmir Regulations 2005.
6. Someone introducing himself as a well wisher of society, dispatched a complaint to the Commission leveling allegations of naked corruption against Sheikh Rafiq Ahmad Additional Deputy Commissioner, Jammu and Ravi Saran clerk in the office of Deputy Commissioner, Jammu while granting of Permanent Resident Certificate in violation of rules charging rupees one thousand per certificate from the beneficiaries. The anonymous complaint attached Permanent Resident Certificates alleged to have been issued without preparation of any file and completion of necessary formalities in favour of S/Shri Sohan Lal and Lekh Raj Gupta. The complaint was addressed to Shri Pramod Jain Divisional Commissioner, Jammu and a copy forwarded to Chairman of the Commission. The Commission entertained the complaint registered it as complaint No. D-89/2006, issued notice to Shri Sheikh Rafiq Ahmad for his personal appearance before the Commission on 29th December, 2006 to submit his statement of defence. Shri Sheikh claims to have made a request to the Commission for closing the proceedings on the ground that the Commission lacked jurisdiction to entertain an anonymous complaint. He thereafter rushed to this Court with a writ petition being OWP No.64/2007. The grounds urged in the petition are identical to the grounds set out in the other petitions. He insists that the Commission lacks jurisdiction to entertain an anonymous complaint and initiate proceedings against the petitioner and that his prayer for dropping the proceedings was not accorded consideration by the Commission.
7. Shri Vikas Behal vide order dated 3rd March, 2006 added as respondent No. 4 by the Commission, a complaint filed by Shri Mohd Shafi against Smt. Sonali Kumar and Smt. Ranjit Kour, has filed a petition registered as OWP No. 72/2007. It may be recalled that while according consideration to the complaint and the record made available by the parties, the Commission as detailed in para 2 above, took cognizance of the matter not only against the respondents name in the complaint but also against Smt. Suman Lata Bhagat, Minister for Health and Medical Education. Shri Abdul Gani Sofi formal State Minister for Health and Medical Education, Shri Vikas Behal, PRO Minister for Health and Medical Education and Mrs. Haleema successor Mrs. Ranjit Kour Principal ATM School, Srinagar. Mrs. Suman Lata Bhagat questions the order in OWP No. 72/2007. Shri Vikas Behal claiming to have been wrongly identified as Vikas Behal in the Commission order dated 3rd March, 2006, throws challenge to the order on the same grounds as urged in the writ petition filed by Mrs. Suman Lata Bhaghat in OWP. No.902/2006.
8. Peerzada Mohd Sayeed is Minister for Public Enterprises in the present Cabinet. On 31st January, 2012, Daily Excelsior, Kashmir Times, Tribune, The Indian Express, carried a news item wherein it was alleged that Mr. Peerzada had used his official position in facilitating use of unfair means by his foster son namely, Imam Soubhan Bhat during Secondary School Examination (Annual) 2009 in Centre No. 228, Al-Ameen School. It was further alleged that the candidate even after he was caught by the Vigilance Squad of the Board using unfair means was not booked and let off on intervention of Shri Peerzada, who at the relevant time was Education Minister with J&K Board of Secndary Education as one of the Departments/Institutions under him. It was further reported that the Crime Branch of the State Police on inquiry ordered by the Chief Minister had submitted its report to the Principal Secretary Home Department. The Commission on 17.02.2012 took notice of the news items repeated in Greater Kashmir on 9th February, 2012 opining that allegations made against the Education Minister squarely fall within the meaning of Sub Section (3) of Section 2 of Jammu and Kashmir Accountability Commission Act, 2002 and that the allegations are likely to shake confidence of the public in Democratic institutions. The Commission, accordingly, found it appropriate to take cognizance of the matter in exercise of powers vested in terms of Section 9 of the Act. The Commission directed notice to be issued to Mr. Peerzada for his personal appearance or appearance through a duly authorized agent or counsel on 2nd March, 2012. The office was directed to call the authenticated copy of the inquiry report submitted by the Crime Branch from the Principal Secretary relating to the matter in issue. Peerzada Mohd Syed aggrieved with the Commission order dated 17th February, 2012 has filed writ petition registered as OWP No. 242/2012. The ground urged in the petition was that the Commission did not have jurisdiction to take suo-moto cognizance of the matter and initiate proceedings against the petitioner. It was pleaded that the Commission lacked power to frame Regulation 9, Jammu and Kashmir Regulations 2005 and the Regulation was liable to be quashed as ultra vires, the Accountability Commission Act, 2002. The petitioner contended that as the petitions questioning validity of Regulation 9 of Jammu and Kashmir Regulations 2005, framed by the Commission stand admitted his petition deserved to be given same treatment and taken up for hearing.
9. S/Shri Farooq Ahmad Dar (from Kashmir) and Sunil Sharma (from Jammu) on 11th August, 2011 addressed a complaint to His Excellency - the President of India, leveling allegations of misappropriation of Government Funds to the tune of five thousand Crore rupees against S/Shri Dr. Manohar Lal Sharma Minister Cooperative Department, Ab. Hamid Wani, Commissioner Secretary Cooperative Department and Mohd Abbas Registrar Cooperatives. The respondents in the complaint were alleged to have indulged in misappropriation while running affairs of the Cooperative Department and the Cooperative Institutions in the State. The complaint also leveled allegations against other officer/officials named in the body of the complaint including Shri Mohinder Singh Chairman, Cooperative Bank Limited and Shri Arun Bakshi - Managing Director, Jammu Central Cooperative Bank . The Commission received a copy of the complaint by speed Post on 5th September, 2011. The Commission entertain the complaint, registered it as complaint No. K-10/2011, issued notice to Dr. Manohar Lal and other public functionaries against whom the allegations were leveled, requiring them to submit their replies. The Commission on 11th May, 2012 on going through the complaint and the replies submitted by the respondents found a prima facie case made out for regular inquiry. The Registry was asked to register the complaint as a regular complaint and issue notice to the respondents. The Vigilance Organization, Kashmir in the meantime, was asked to inform the Commission about the status of the cases registered in the matter.
10. S/Shri Mohinder Singh and Arun Bakshi aggrieved with the order of Commission dated 11.05.2012, have filed a writ petition being OWP No. 727/2012. The main plank of the petitioners case is that Regulation 9, Jammu and Kashmir Regulations 2005 is ultra vires. It is pleaded that the Commission does not have jurisdiction to take cognizance on an anonymous complaint and that the Sections 7, 9, 20, 21, 23, 28, 30, 31 are ultra vires the Constitution and liable to be quashed. It is further pleaded that the allegations leveled in the complaint do not fall within the definition of grievance as defined under the Act, nor does the complaint fall within purview of the Act.
11. The writ petition OWP No. 804/2012 titled Manohar Lal Versus State and anr. also arises out of the Commission order dated 11th May, 2006. The petitioner is Minister of State for Cooperative (with independent charge) in the State Cabinet. It is pleaded that the Commission lacks power to initiate proceedings against the public functionaries in absence of a complaint in the format prescribed under SRO 281/2005. It is urged that jurisdiction of Commission is confined to investigate and enquire, as contemplated by the Act and does not extend beyond the jurisdiction delineated in the Act. Independent of challenge to the vires of Regulation 9 Jammu and Kashmir Regulations 2005, it is insisted that the allegations set out in the complaint are false, frivolous and devoid of any substance.
12. The State Governmentrespondent no. 1 has not filed reply in any of the writ petitions. Learned Advocate General appearing for respondent No. 1, however has taken a categoric stand that the Commission does not have power to take suo-moto cognizance of a matter, in absence of complaint filed in accordance with the Act and the Regulations made thereunder and that Regulations 9, Jammu and Kashmir Regulations 2005 is ultra vires the Act.
13. The Commission however has filed its reply in OWPs 64/2007, 902/2006 and 905/2006. As stand taken by the Commission in all other petitions, is similar to the stand taken in aforesaid petitions, learned Counsel for the respondent Commission prays that the reply filed in OWPs 64/2007, 902/2006 and 905/2006 be treated as reply in other petitions as well. It is made clear that the Commission is presently, restricting its contest to the interpretation of the provisions of Jammu and Kashmir Accountability Commission Act, 2002, delineating the power of the Commission. The respondent Commission while denying all the averments made in the petitions insists that the Commission in terms of provisions of the Act and the Regulation 9 made in exercise of powers under Section 31 of the Act, has power to initiate suo-moto proceedings where grounds exist to initiate action. It is denied that the Commission has acted beyond or without jurisdiction while taking cognizance of the complaints and issuing notice to the petitioners to file their reply or deciding to hold a regular inquiry.
14. I have gone through the petitions and have heard learned counsel for the parties.
15. The main plank of the petitioners case is that the Act does not confer any power on the Commission to initiate suo-moto investigation/inquiry into an action of a public functionary or an allegation against a public functionary. It is pleaded that the Commission lacks jurisdiction to commence proceedings, on its own, on the facts that come to its notice otherwise than in the form of complaint contemplated under the Act, Rules framed thereunder and Regulations made in exercise of powers under Section 31 of the Act. Learned counsel for the petitioners lay emphasis on the Section 3 of the Act that provides for establishment of the Commission and maps out the purpose for which the Commission is established and Sections 11, 13, 24 of the Act as also Rules 5, 7 8, 9, and 16 of Jammu and Kashmir Accountability Commission Rules, 2005. It is insisted that Regulation 9 of Jammu and Kashmir Accountability Commission Regulations, 2005 does not have its roots in any of the provisions of the act and is beyond scope of Section 31 of the Act where- under power is conferred on the Commission to make Regulations. It is insisted that the commission cannot under Regulation 9 assume a jurisdiction that the law makers have not conferred on the Commission. Learned counsel for the petitioners argue that power to make Regulations enables the Commission to lay down the procedure to be followed by Commission for conducting proceedings including inquiries and investigations on complaints received by it and not to create a power or jurisdiction not available under the Act. The Commission, it is pointed out, cannot claim any inherent powers as available to the Courts as the power and jurisdiction of the Commission is to remain within confines of the Act. Learned counsel for the petitioners also refer to Section 24 of the Act that insulates public functionaries against false and frivolous complaint. It is pointed out that whenever a complaint is found by the Commission to be false, frivolous and vexatious to the knowledge of the complaint, the Commission has power and jurisdiction in terms of Section 24 to proceed against the person and once found guilty, the complainant is to be sentenced to imprisonment and fine. Learned counsel for the petitioners contend that, in case, an information that prompts the Commission to suo-moto initiate proceedings, is later found to be false, frivolous and vexatious, the Commission would be helpless to proceed against the source of information and the public functionary would be subjected to unwarranted and avoidable harassment.
16. Learned counsel for the Commission, on the other hand, argues that in terms of Section 9 of the Act delineating jurisdiction of the Commission, the Commission is empowered to investigate any action, which is taken by or with the general or specific approval of a public functionary as defined in clause (16) of Section 2. Mr. Sethi argues that Sections 11 to 13 of the Act do not limit the jurisdiction of the Commission and merely lay down procedure to be followed by the Commission while conducting inquiry and investigation. Section 11 of the Act, it is pointed out, has been made subject to other provisions of the Act including Section 9 and that Section 9 is not in any manner controlled by Section 11. It is pointed out that Section 9 of the Act by omitting to use expression allegation and by using the expression, action widens power and jurisdiction of Commission. It is argued that the law makers by using the expression action have made it clear that the Commission to swing into action, must not necessarily have a complaint detailing the allegation before it. The Commission, it is argued can look into any action like decision, recommendation, or finding as also failure to act on part of public functionary, on its own without their being any allegation leveled in a complaint against such public functionary. Sections 11, 13, 24 of the Act as also to Rules 5, 7 8, 9, and 16 of Jammu and Kashmir Accountability Commission Rules, 2005, it is pointed out, deal with only one of the modes that may prompt the commission to initiate investigation or inquiry and are not exhaustive in character, so as to infer that the Commission cannot act in absence of a formal complaint. Mr. Sethi, learned Senior Advocate appearing for Commission, insists that the Regulation 9 falls within the ambit of powers available under Section 31 of the Act, inasmuch as Sub Section (2) of Section 31 is illustrative in character and does not control Sub Section (1) of Section 31 that give the Commission power to make such Regulations as it may deem necessary for carrying out the purpose of the Act. Regulation 9, it is emphasized does not infringe or go beyond any of the provisions of the Act and can be validly used by the Commission to initiate suo-moto proceedings against the public functionary, as has been done by the respondent-Commission in the matters on hand.
17. Learned counsel for the interveners laying emphasis on purpose of the Act, the mischief sought to be addressed and menacing proportions assumed by corruption in public life argue that the Act needs to be given a purposive interpretation. It is argued that the hyper technical view, restricting ambit and scope of the Act and powers of the Commission would defeat the very object and purpose for which the Act came into being. Mr. Ahmad, learned counsel for the interveners, in particular, places reliance on the following observations of the Supreme Court in Subramanian Swamy Vs. Manmohan Singh and another (2012) 3 Supreme Court Cases 64;
68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundations of the Indian democracy an the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. 69. Time and again this Court has expressed its dismay and shock at the ever-growing tentacles of corruption in our society but even then situations have not improved much.(See Sanjiv Kumar V. State of Haryana; State of A.P. Vs. V. Vasudeva Rao; Shobha Suresh Jumani V. /Appellate Tribunal; state of M.P. v. Ram Singh; J. Jayalalitha v. Union of India; and Major S.K. Kale v. State of Maharashtra.)
18. In order to examine whether the Commission can suo moto initiate inquiry, investigation or proceedings against the public functionary, our attention must, in the first place, go to the provisions of the Act. The preamble of the Act to spelt out the purpose of the Act states that the object to establish an institution to inquire into the grievances and allegations against public functionary and for matters connected therewith. The expression grievances and allegations imply or presuppose that there is a person aggrieved or a person leveling the allegations. The expressions refer to someone, who has a grievance against a public functionary or has an allegation to level against such functionary. The preamble to the Act, therefore, visualizes a complaint voicing grievances or allegations. The preamble obviously does not refer power to inquire into the matter in absence of grievance or allegation or a power to act suo moto. Section 3 of the Act further reflects the intention of legislature in establishing the Commission and the objects sought to be achieved by enactment of the Act. It would be advantageous to reproduce Section 3 of the Act hereunder;
3. Establishment of Accountability Commission (1). As from the commencement of this Act, there shall be established, for the purpose of conducting investigations and inquiries in respect of complaints under this Act, an institution to be called the Accountability Commission.
(2). The Accountability Commission shall consist of-,
a. [a Chairperson who has been a
Judge of the Supreme Court or
Judge of any High Court]; and
b. Such other Members, if any, as
may be prescribed:
Provided that a person shall not be
qualified for being appointed as a Member
unless he has been [a Judge of the High
Court].
(3). The Chairperson and every other member shall,
before entering upon his office, make and
subscribe before the Governor or any person
nominated in this behalf by him, an oath or
affirmation in the form set out in the Schedule. (4). A vacancy occurring in the institution of Accountability Commission shall be filled in as soon as possible.
19. The plain reading of Section 3 would make it clear that the purpose to establish the Commission is to provide for conducting investigations and inquiries in respect of complaints under the Act. Section 3 does not include power to initiate suo moto inquiry, investigation or proceedings against the public functionary. It is pertinent to point out that the legislature in its wisdom has not made Section 3 subject to other provisions of the Act. Sections 11 and 12 lay down the procedure to be followed by the Commission while receiving the complaint under the Act. Sections 11 and 12 read as under;
11. Provisions relating to complaints (1) Subject to the provisions of this Act, a complaint may be made under this Act, to the Accountability Commission, by any person by a person aggrieved:
(2) Every complaint shall be made in such form and in such manner and shall be accompanied by such affidavit as may be prescribed.
(3) The contents of the complaint shall not be made public till its scrutiny by the Accountability Commission under section 12.
12. Preliminary scrutiny of complaints by Accountability Commission (1) If the Accountability Commission is satisfied, after considering a complaint and after making such verification as it deems appropriate that the complaint is manifestly false and vexatious, the Accountability Commission shall dismiss the complaint after recording its reasons therefore and communicate the same to the complainant and to the competent authority.
(2) The procedure for verification in respect of a complaint, under sub-section (1) shall be such as the Accountability Commission deems appropriate in the circumstances of the case and in particular, the Accountability Commission may, if it deems it necessary so to do, call for the comments of the public functionary concerned.
Section 11 again refers to a complaint and procedure to be followed by the Commission while dealing with the complaint. Sub Section 2 Section 11 makes it mandatory for the complainant to file affidavit in support of the complaint. In terms of Section 12, in the event, the complaint is dismissed at a preliminary stage, the order made thereon is to be conveyed to the complainant and also to the Competent Authority. It gives liberty to the Commission to evolve its own procedure and methodology for verification of complaints received by the Commission and permits it to call for comments of the public functionary concerned.
20. Section 13 likewise contemplates service of copy of the complaint on the public functionary as well as the Competent Authority. The public functionary is to present his defence within a period of two months from the date of receipt of the copy of the complaint and the Competent Authority to furnish its comments within a period of one month from such date. In terms of Section 13 Sub- Section 3, the Commission is to hold an inquiry as expeditiously as possible and in any case, complete the inquiry within the period of six months from the date of receipt of the complaint. Section 13(3), therefore, refers to the complaint while prescribing the period with which an inquiry is preferably to be completed. It again makes it clear that inquiry, investigation or proceedings cannot be initiated otherwise than on a complaint. Section 21 of the Act requires the Commission to communicate its findings through a report in writing to the complainant, the public functionary and the Competent Authority. Such report is to be published in the Government Gazette besides any other mode as may be deemed fit by the Commission. It is important to note that Section 21 refers to allegations made in the complaint while placing a duty on the Commission to communicate through a report its findings in the complaint, public functionary and Competent Authority. It would be advantageous to reproduce Section 21 (1) of the Act;
21. Reports of Accountability Commission (1) After the conclusion of inquiry under section 13 the Accountability Commission shall determine whether all or any of the allegations made in the complaint have or has been proved to its satisfaction and by report in writing shall communicate its findings to the complainant, the public functionary and the competent authority and such report shall be published in the Government Gazette besides other manners and modes as may be deemed fit by the Accountability Commission.
21. Let us now consider another aspect of the matter. There can be no disagreement with the proposition that while it is of utmost importance to deal with the menace of corruption with a heavy hand and no public functionary alleged to be involved in misconduct, allowed to go off the hook without investigation or inquiry into the alleged misconduct and punishment prescribed under law, it is equally important that a public functionary should not be exposed to frivolous, false and vexatious prosecution. In every statute that provides for prosecution and punishment of the erring officials, a provision is incorporated to guard against vexatious proceedings against public servants and prosecution is permitted to be launched after some kind of scrutiny of allegations at the pre-prosecution stage. The object is not to protect the public servants from the prosecution and punishment for the misconduct alleged but to enable the public servants to perform their duties fearlessly and unmindful of any threat of vexatious, mala fide or false prosecution for the acts done in good faith in the performance of their duties.
22. While Judicial Magistrate, Ist Class in terms of Section 190 Cr.PC is empowered to take cognizance of any offence, upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any police officer or even upon his own knowledge or suspicion, that offence has been committed yet Section 197 Cr.PC carves out an exception, in case of a public servant. It provides that when any public servant, who is not removable from his office save by or with the sanction of the State Government or Government of India, is accused of an offence alleged to have been committed by him while acting or purporting to the act in discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction of the Government of India/State Government as the case may be. The object is to get such an allegation scrutinized at appropriate level and permit only such prosecution that on a prima facie view appears to have substance. Similarly, Section 6 of the Jammu and Kashmir Prevention of Corruption Act, 2006 Samvat. (1949 AD), prohibits prosecution under the Act except after the sanction for prosecution is accorded by the Competent Authority. One of the modes to rule out or discourage false, frivolous and vexatious complaints, is to subject such complaints to scrutiny at the pre-inquiry/prosecution stage, so that only such complaints as pass through such filtration are entertained. The other course or option available, is to provide for prosecution and punishment of the complainant, who has no genuine reason to level allegation against a public servant but files complaint on vexatious, mala fide and frivolous grounds. The law makers, in case of investigation, inquiry and proceedings under the Act, have opted for the second course. Section 24 of the Act prescribes penalty for mala fide complaint. It reads;
24. Penalty for malafide complaint
a). Every person who makes any complaint which he knows or has reason to believe that the same is false, frivolous or vexatious upon finding to that effect recorded by the Accountability Commission shall be punishable as provided in sub-section (2).
b). When any offence under sub-section (1) is committed, the Accountability Commission may take cognizance of the offence and after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily, so far as may be, in accordance with the procedure specified for summary trials under the Code of Criminal Procedure, Samvat 1989, and if such offender is found guilty of committing the offence, sentence him to imprisonment for a term which shall not be less than one year but which may extend to three years and also to fine which may extend to fifty thousand rupees and may also award where fine is imposed, out of the amount of the fine, to the public functionary against whom such false complaint has been made, such amount of compensation as the Accountability Commission thinks fit:
Provided that this shall not debar the public functionary to pursue any other remedy or relief under any law against the complaint. Section 24 is expected to discourage false, mala fide, frivolous and vexatious complaints against the public functionaries. Section 24 of the Act provides an insulation or protection to the public functionaries against false and frivolous complaints. The object is that a public functionary should be in a position to discharge his duties fearlessly, undaunted by fear of such complaints. In case, the Commission is held to have power to suo moto, in absence of a complaint, order inquiry, investigation or proceedings against a public functionary, the legal cover provided to the public functionary will disappear and the object of Section 24 of the Act would be defeated. Let us assume that the Commission without a complaint decides to suo moto, direct investigation, inquiry or proceedings against a public functionary on its own knowledge, because of some private information, suspicion or any information received otherwise through a complaint and after inquiry that may stretch over a period of few months comes to conclusion that the information received or suspicion nursed that prompted it to swing into an action, is not only baseless but mala fide, the Commission would not be in a position to prosecute and punish the source of the information. In such a case, the public functionary would be exposed to harassment, to which law makers did not intend the public functionary to be exposed. We need to be reminded that the rule makers in their wisdom under Rule 5 and Rule 6 of the Rules, 2005 have made it obligatory from the complainant to sworn an affidavit in support of the complaint so that the identity of the complaint is free from any doubt and in the event the complaint is found to be false, frivolous or vexatious in terms of Section 24 of the Act, he can be proceeded with in terms of the aforesaid provision and punish in accordance with Section 24(2) of the Act. Section 24 further makes the intention of the law makers clear that the Commission was not intended to have power to suo moto order inquiry, investigation or proceedings against the public functionary in absence of the complaint.
23. Let us now shift our focus to the Jammu and Kashmir Accountability Commission Rules, 2005. Rule 2(iv) defines complainant as a person entitled to file complaint under Section 11 of the Act. Rule 5 prescribes Form and contents of the complaint. In terms of Rule 5(1), every complaint is to be, as far as possible, made in Form-A prescribed in Schedule duly signed and supported by an affidavit as prescribed under Rule 6. Rule 7 and 8 prescribe mode and method of scrutiny and registration of complaints. In terms of Rule 9, an officer of the Commission is to send to the complainant an acknowledgement of the complaint in Form C prescribing the Schedule. In terms of Rule 16, a complaint in which proceedings are closed or concluded exparte may be taken up by the Commission for rehearing on merits, if sufficient cause is shown to re-open it. In terms of proviso to Rule 16, such order, i.e. one of reopening the case and rehearing it on its merits shall not be passed three months after from the date of closure, filing or exparte of the decision of the case.
24. The Commission in exercise of powers vested in it under Section 31 of the Act has made Regulations called the Jammu and Kashmir Accountability Commission Regulations, 2005. The Regulations deal with the procedure to be followed by the Commission while conducting inquiry, investigation or proceedings against a public functionary. In terms of Regulation 4, the Chair person of the Commission by a general or special order is authorized to delegate any power conferred or duty imposed on him under the Act, for the purposes of receiving, processing and registering of the complaints, on any officer/employee of the Commission as may be specified in the order/direction. Regulation 5, lays down mode and manner of filing of the complaints. Regulation 6 lays down procedure regarding holding a preliminary inquiry. Regulation 6 also refers to the complaint while laying down the procedure regarding holding a preliminary inquiry. In terms of Regulation 6, after the commission on consideration of the statement of defence and the report of Competent Authority [submitted in terms of Section 13(1) of the Act] considers that further inquiry or investigation is required to be conducted, to afford the public functionary further an opportunity of time not exceeding two months to submit his defence, if any, and thereafter, issue appropriate directions to the complainant and the public prosecutor for production of evidence in support of the allegations leveled against the public functionary within a specific time. Regulation 6(2) lays down the manner in which the evidence is to be produced to substantiate the allegations leveled in the complaint and provide for an opportunity to the complainant to address the arguments in support of the allegations.
25. Sections 20 and 23 of the Act are also required to be noticed in the context of the present discussion.
20. Power to punish for contempt (1) The Accountability Commission shall have and exercise the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has, and, for this purpose, the provisions of the Jammu and Kashmir Contempt of Courts Act, 1997, shall have effect subject to the modification that the references therein to High Court shall be construed as including a reference to the Accountability Commission. (2) The Accountability Commission shall be deemed to be Court within the meaning of Jammu and Kashmir Contempt of Courts Act, 1997.
23. Power of Accountability Commission to try certain offences (1) When any such offence as is described in sub-section (1) of section 22 is committed in the view of presence of the Accountability Commission, the Accountability Commission may cause the offender to be detained in custody and may. At any time on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, try such offender summarily, so far as may be, in accordance with the procedure specified for summary trials under the Code of Criminal Procedure, Samvat 1989, and sentence him to simple imprisonment for a term which any extend to six months, or with fine or with both.
(2) In every case tried under this section, the Accountability Commission shall record the facts constituting the offence with the statement, if any, made by the offender as well as the finding and the sentence.
(3) Any person convicted on a trial held under this section may appeal to the High Court which shall be heard and decided by a Division Bench of the High Court.
(4) The provisions of this section shall have effect notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989. The legislature in its wisdom has conferred power on the Commission to punish for contempt. The Commission in terms of aforesaid provision is competent to exercise the same jurisdiction, powers and authority in respect of the contempt of itself, as a High Court. The Commission under Section 23 is again empowered to try an offender summarily in case offence described in Sub Section (1), Section 22 is committed in view of the presence of the Commission. The law makers, therefore, have expressly clothed the Commission with the powers to punish for contempt where they in their wisdom thought proper to clothe the Commission with such powers. The legislature, therefore, would have expressly conferred a power on the Commission to suo moto order inquiry, investigation or proceedings against a public functionary, in the event, such a power was intended to be given to the Commission.
26. The Scheme of the Act and the Rules framed thereunder lead to the irresistible conclusion that the law makers did not intend to confer power on the Commission to suo moto order inquiry, investigation or proceedings against a public functionary under the Act in absence of a complainant and a complaint received from such complainant as far as possible in the format prescribed under the Rules. The Regulations 6 and 7 also lay support to such conclusion.
27. However, it is argued by learned counsel for the Commission that the power to suo moto order inquiry, investigation or proceedings is to be located in Sections 9, 27 and 31 of the Act. It is argued that Section 9 sub-Section (1) refers to action and not allegation and, therefore, jurisdiction of the Commission is not restricted to investigation or an inquiry on a complaint leveling allegation against a public functionary. In order to appreciate the arguments in right perspective, it would be advantageous to notice Section 2(2) and Section 9 of the Act;
2.(2): action means action taken by way of decision, recommendation or finding or in any other manner and includes failure to act and all other expressions connoting action shall be construed accordingly.
9. Jurisdiction of Accountability Commission (1) Subject to the provisions of this act, the Accountability Commission may investigate any action which is taken by or with the general or specific approval of a public functionally as defined in clause (16) of section 2.
Provided that the Accountability Commission shall not inquire into any matter involved in, or arising from, or connected with, any such allegation against the Chief Minister in so far as it is in the interest of the security of the State and/or maintenance of public order. (2) The Accountability Commission may inquire into any act or conduct of any person other than a public functionary in so far as it considers it necessary so to do for the purpose of its inquiry into any such allegations:
Provided that the Accountability Commission shall give such person a reasonable opportunity of being heard and to produce evidence in his defence.
(3) No matter in respect of which a complaint may be made under this Act shall be referred for inquiry under the Jammu and Kashmir Commission of Inquiry Act, 1962. It is pointed out by learned counsel for the petitioners that action is of a wider scope than the expression allegation and the law makers by using expression action in Section 9 have conferred wider jurisdiction on the Commission to look into the decision, recommendation, findings recorded by a public functionary and even failure to act. The argument may sound attractive but turns out to be specious, when we take a holistic view of the Act and the Rules made thereunder. In the first place, Section 9 dealing with the jurisdiction of Accountability Commission is made subject to provisions of the Act. Section 9, therefore, is subject to Section 3 of the Act that spells out the object and purpose of establishment or setting up, of Accountability Commission. Section 3 in turn is not made subject to any other provision of the Act. Section 3 as already noticed identifies investigations and inquiries in respect of the complaints under (the) Act as purpose for the establishment of the Accountability Commission. Section 9, therefore, is to be interpreted against the backdrop of Section 3 of the Act.
Furthermore, the expression action may widen the scope of matters to be investigated by the Commission but does not introduce any mode other than a complaint, to prompt the Commission to swing into action. Furthermore, the expression action is used to include omissions and commissions. It is important to note that action is not defined under Section 2(2) of the Act in relation to a public functionary while the expression allegation is defined under Section 2(3) in relation to the public functionary. This apart, Proviso to Section 9 of Act makes it clear that use of word action in Section 9(1) of the is not intended to confer any jurisdiction wider than one otherwise available to the Commission. The Proviso while giving immunity to the Chief Minister as regards acts done in the interest of security of the State or maintenance of public order makes use of expression such allegation. Had it been intention of the law makers to convey a wider jurisdiction by use of word action in Section 9(1), they would not have made use of expression any such allegation in the Proviso as acts and omissions beyond allegation, but within action would be investigated by the Commission against the Chief Minister even if the act or omission was made in the interest of security of State or maintenance of public order. Rule 7 sub Rule 3 makes the position more clear. It reads:
7(3). The complaints relating to actions, allegations and grievances pertaining to Kashmir Division shall be filed in the Srinagar Wing of the Commission and such complaints pertaining to Jammu Division be filed in the Jammu Wing of the Commission. Rule 7 sub Rule (3) makes it clear that action, allegation and grievance are dependent on the complaint filed before the Commission and the word action used in Section 9 (1) does not lead to the conclusion that the word confers a power on the Commission to suo moto order inquiry, investigation or proceedings against a public functionary in absence of a complaint. The argument advanced by Mr. Sethi, learned Senior Advocate, are, therefore, devoid of any merit.
28. Let us now turn to Section 27 to find if it admits of a suo moto power to the Commission as Mr. Sethi would make us to believe. Section 27 reads as under;
27. Persons likely to be prejudicially affected to be heard If, at any stage of the inquiry, the Accountability Commission,---
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, The Accountability Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence.
Provided that nothing in this section shall apply where the credit of a witness is being impeached. A bare look at Section 27 would reveal that the Commission in terms of the said provision would have jurisdiction to inquire into the conduct of any person, not identified in the complaint only after a proper complaint as contemplated under the Act is filed before the Commission. The Commission, if after it entertains a complaint, proceeds in the matter considers it necessary to inquire into the conduct of any person or is of the opinion that the reputation of any person is likely to the prejudicially affected by the inquiry, is to give a person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. The emphasis should be on word inquiry used in Section 27 of the Act. It leads us to conclude that an inquiry initiated on a complaint, is already pending before the Commission when a decision to inquire into the conduct of any person is taken by the Commission. One cannot, therefore, locate power to suo moto order inquiry, investigation or proceedings against public functionary in Section 27 of the Act.
29. Section 31 clothes the Commission with power to make Regulations. Learned Counsel for the respondent Commission insists that power to make Regulations under Section 31(1) includes power to make Regulation 9, wherein procedure in suo moto actions is laid down. It is argued that sub Section (1) of Section 31 of the Act is wide in its scope and does not, in any manner, restrict or limit the power available to the Commission to make regulations, as it may deem necessary, for carrying out the purposes of the Act. It is insisted that sub-Section 2 of Section 31 does not control sub Section (1) of Section 31 of the Act and that the former is only illustrative and not exhaustive in character. The argument is far from convincing and is of no help to the case sought to be set up by learned counsel for the respondent- Commission.
30. It is pertinent to point out that while the Government in terms of Section 30 of the Act has power to make rules for the purposes of carrying into effect, the provisions of the Act, the Commission is given power to make regulations for carrying out the purposes of the Act. There is difference in ambit and scope of power given to the Government under Section 30 of the Act and one given to the Commission under Section 31 of the Act. The power given to the Commission to make regulations that it hardly needs to be emphasized lack statutory flavor, is to be exercised essentially to lay down the procedure and not to create any substantive right or introduce a remedy beyond the purpose of the Act. Firstly, the concept of suo moto power is alien to the scheme envisaged under the Act and the Rules made there under. Secondly, Section 31 is not an open ended provision. It empowers the Commission to make regulations as it may deem necessary for carrying out the purpose of the Act. The emphasis must be on the expression purpose of the Act. Section 3 of the Act that as already pointed out is not made subject to any of the provisions of the Act, maps out purposes of the Act and establishment of Commission. The purpose is to establish a Commission, for the purpose of conducting investigations and inquiries in respect of complaints, under the Act. The Commission obviously has the power to make Regulations to regulate receipt of complaints, and mode and manner of investigation into the complaints and like matters. Section 31, therefore, does not empower the Commission provide a remedy not available under the Act, to trigger proceedings under the Act and the rules made there under. The Regulation 9 where under the Commission as on indirectly confer a power to take suo moto action by laying down a procedure to be followed in such a case is beyond the scope of Section 31 of the Act and ultra vires the Act. The Commission has made Regulation 9, erroneously assuming that it has power under the Act suo moto order investigation, inquiry or proceedings against a public functionary.
31. From the above discussion, it is abundantly clear that the Commission does not have a power under the Act and Rules made thereunder to suo moto, in absence of the complaint, order inquiry, investigation or proceedings against a public functionary. Regulation 9 is in-conflict with the Act and beyond the scope of Section 31 of the Act and, therefore, liable to be struck down. The Regulation offends the fundamental principle that requires the Commission to act within the four corners of the State Accountability Act of which the Commission is a creation.
32. An argument may be advanced that the Commission has an inherent power, independent of the provisions of the Act and the Rules made thereunder, to swing into action on its own, without a complaint and suo moto order, inquiry, investigation or proceedings against a public functionary. Let us not leave room for any ambiguity and deal with this aspect of the matter as well.
33. Inherent Jurisdiction and Inherent Powers are two different concepts. Though elusive, yet they are used as a basis for jurisdiction that is not explicitly supported by statute. Inherent jurisdiction is a doctrine of English Common law that superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to other Court or tribunal. Article 142 Constitution of India may well be taken as a Constitutional provision intended to recognize inherent jurisdiction of the Supreme Court of India to pass such decree or such order as is necessary for doing complete justice in any case or matter pending before it. Supreme Court in DDA versus Skipper Construction Co. (P) Ltd. (1996) 4 SCC while reiterating that inherent jurisdiction recognized under Article 142, cannot be limited by a statutory provision observed:
the power under Article 142 is meant to supplement the existing legal frameworkto do complete justice between the partiesand not to supplant it. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. As a matter of fact, we think it advisable to leave this power undefined and uncatalogued so that it remains elastic enough to be moulded to suit the given situation. The very fact that this power is conferred only upon this Court, and on no one else, is itself an assurance that it will be used with due restraint and circumspection, keeping in view the ultimate object of doing complete justice between the parties. The inherent powers on the other hand inhere in every Court as these are essential to the nature or constitution of Court. Blacks Law Dictionery (VIIIth edition) defines inherent powers as: A power that necessary derives from an office, position, or status.
34. Section 561-A Criminal Code of Procedure saves the inherent power of High Court independent of the provision of the Code and provides for exercise of such power to give effect to any order under the Code, or to prevent abuse of process of court or otherwise to secure justice. Section 151 Civil Procedure Code likewise saves inherent powers of court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. While 561-A Code of Criminal Procedure is restricted in its scope to High Courts, Section 115 Civil Procedure Code, applies to all the courts. It is pertinent to note that neither Section 561-A Cr.P.C nor Section 115 CPC confers inherent powers on the court. These provision only reiterate that inherent powers available to the Courts, independent of two codes, are to remain unaffected by the provisions of the Codes. It is equally important to note that though Supreme Court and High Courts would have been competent to exercise inherent jurisdiction and plenary powers and Subordinate Courts to make use of inherent powers even in absence of Article 142 of Constitution, Section 561-A Cr.P.C and Section 115 CPCyet Framers of Constitution and Law makers thought it proper not to allow the area hazy or leave room for any ambiguity to creep in. The aforesaid provisions make it clear that the Courts because of their very constitution and obligation to dispense justice as part of the sovereign power had inherent powers before the Civil Procedure Code, and Criminal Procedure Code were enacted.
35. What is true about Courts is not true about, a body created under a statute. It is well settled that a statutory body being creation of a statute has to exercise its power within four corners of the statute.
36. The Commission as a creation of the statute cannot claim inherent power to suo moto order inquiry, investigation or proceedings against a public functionary. The purpose of a statute, creating authority is to specify, delineate and define powers of the authority created by it. The object would be undermined by claiming open ended powers in the name inherent powers that it would not be possible to easily define, control or circumscribe.
37. In Varada Iyengar Versus Ramudu (1983) 2 MLJ 517, the court rejecting the argument that an authority vested with decision making power under any statute is to be taken to have inherent powers like a court held:
The conception of inherent powers is opposed to statute-created jurisdictions. In this respect, Courts of law are a different brand altogether Every legal system recognises the existence of inherent powers in the common law Courts. If Section 151 of the Code of Civil Procedure, saves the inherent powers of Court, that is because inherent powers pre-existed the Code. The position, however of the Tribunals appointed under statutes is quite different. They may well possess some or even all the trappings of Courts of justice, but they are creatures of statute in the sense that they owe their existence as well as the definition of their powers to the statute. It is the statute which confers and defines: the powers of the tribunals. In every case it is a matter of construction of the statute, as to how and in what manner the tribunal's powers have got to be exercised, and also as to the nature and extent of those powers. Depending upon the words of the particular statute concerned, it might, in a given case, be open to a Court of construction to read certain incidental, or ancillary or implied, powers in the statutory tribunals, over and above that which is expressly conferred by the statute on such tribunals as their jurisdiction. But the doctrine of implied powers is quite different from imputing to the tribunals any inherent powers. Inherent powers are to be distinguished from implied powers. Though they are more often used as synonymous with each other the two differ fundamentally. Implied power is a power that can be reasonably derived from a explicit power. It is something that can be assumed as a reasonable out growth of explicit power. Inherent powers on the other hand are such powers as are assumed as axiomatic components of fundamental function of a Court.
38. The Commission may have implicit or implied power reasonably deducible from its explicit power to regulate its procedure but it does not have inherent power that would overrides the Act, or be in conflict with any of the provisions of the Act or the rules made thereunder.
39. The discussion leads us to the conclusion that the Commission cannot claim to have an inherent power to suo moto order investigation, inquiry or proceedings against a public functionary.
40. It cannot be denied that corruption in public life has of late assumed alarming proportions. It has been rightly called a threat to a democratic polity more serious than internal revolt or external aggression. It erodes basic human values creates overnight millionaire, leads to unhealthy competition in the society, adversely affects life style, promotes insatiable lust for wealth, misallocation and misappropriation of resources. Materialistic pursuits as against value based life style, pompous show of money power, dowry demands and dowry deaths are only a few of spillovers of the menace of corruption that have seeped deep into our social fabric. Corruption does not allow the tax payers money to go to benefit the target groups. The result is that the huge budgetary allocations and welfare schemes intended to ameliorate lot of poor, down trodden, marginalized, deprived and unattended sections of the society, go to the pockets of a handful of public functionaries and lead to illegitimate and undue enrichment. It results in a sense of bitterness, deprivation and injustice amongst the people below and a little above poverty line. It erodes their confidence in the rule of law and prompts a few amongst them to nurse idea of using methods other than democratic to usher change in the system. Corruption having regard to its negative spillover on the people in general has its competitors only in terrorism and environmental degradation. In other words, the corruption because of its spread and sweep may be as dangerous as terrorism and as lethal as threat to the eco- system. The democratic polity as a whole, the pillars on which it has its edifices and all its institutions have to formulate responses, to combat corruption. The Jammu and Kashmir State Accountability Commission Act, 2002 is one of the responses formulated by the legislature to fight the menace. However, seriousness or gravity of the problem must not prompt us to make a departure from fundamental principles that govern exercise of powers by a statutory body in the present case, Accountability Commission created by a statute, nor prod us to interpret the Act and the Rules made thereunder in a manner not permissible under law. The principle of purposive interpretation cannot be pressed into service to rewrite law. Such power belongs to the legislature, and not to the Courts. The law makers, therefore, are free to confer power on the Commission to suo moto order inquiry, investigation or proceeding against a public functionary by making necessary amendment in the Act. However, as on today, such a power to the Commission is not available under the Act.
41. In view of the conclusions drawn, the Regulation 9 is held to be ultra vires the Jammu and Kashmir Accountability Commission and beyond power given to the Commission under Section 31 of the Act and, is accordingly, struck down. The proceedings initiated against the petitioners in OWP Nos. 727/2012, 804/2012, 242/2012, 956/2006, 94/2007 and 64/2007 by the Commission suo moto on anonymous complaints, or the complaints filed without sufficient particulars of the complaint(s), so as to identify the complaints and, therefore, as good as anonymous are without jurisdiction and are, accordingly, quashed. The writ petitions bearing OWP Nos. 727/2012, 804/2012, 242/2012, 956/2006, 94/2007 and 64/2007 are, therefore, allowed. However, as regards proceedings initiated against Smt. Suman Lata Bhagat and Vikas Behal @ Vikas Bhagat in OWP Nos.902/2006 and 72/2007, the Commission had before it a complaint filed by Mohd. Shafi Indrabi lodged in accordance with the Act. The Commission while proceeding with the inquiry, considered it necessary to inquire into the conduct of Smt. Suman Lata Bhagat Minister for Health and Medical Education, Mr. Abdul Gani Sofi, Minister for Health and Medical Education, Shri Vikas Bhagat PRO of Minister for Health and Medical Education, and Mst. Halima Principal AMT, School, Srinagarsuccessor in office of Smt. Ranjit Kour respondent in the complaint. The proceedings initiated fall within the ambit of Section 27 of the Act. The proceedings against the petitioners in OWP Nos.902/2006 and 72/2007 having been initiated in exercise of powers vested in the Commission under Section 27 of the Act cannot be faulted as the proceedings are marketedly distinguishable from suo moto proceedings in absence of a complaint lodged under the Act. The grounds urged in the petitions, independent of challenge to the authority of the Commission to suo moto initiate proceedings, are factual in character and to be dealt with by the Commission after the petitioners in response to the notice, avail the opportunity of being heard and produce the evidence in their defence. The writ petition bearing OWP Nos.902/2006 and 72/2007 are, therefore, disposed of giving liberty to the petitioners to project their stand and also produce such evidence as they may deem proper before the Commission.
42. Registry to send copy of the judgment to the Commission.
(Hasnain Massodi) Judge Jammu 04.01.2013 Varun Bedi