Allahabad High Court
Bhim Singh vs State Of U.P. And Others on 8 August, 2017
Author: Arun Tandon
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 10 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 23250 of 2010 Petitioner :- Bhim Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- S. K. Pandey Counsel for Respondent :- C. S. C.,A.K. Pandey, P.N. Ojha, Parmeshwar Yadav Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
This petition was filed with the allegation that a huge amount of General Provident Fund (GPF) has been withdrawn/not deposited in the accounts and has been utilized for payment of salary to the illegally appointed teachers in recognized and aided Intermediate Colleges in district Ballia.
Having regard to the seriousness of the allegations made in the writ petition, orders were passed calling upon the district educational authorities as well as State Government to respond to the proceedings. On 13th May, 2010 the Chief Standing Counsel of the State of U.P. made a statement that certain disciplinary proceedings have been initiated and further that the embezzlement of the money from the GPF Account is not in dispute, only its quantification is required to be done. The Court was assured that if required first information report shall be lodged against all found guilty.
The matter was adjourned to 25th May, 2010. On the said date the Secretary, Secondary Education produced a copy of the first information report lodged against 83 persons in the matter of misappropriation of the GPF money of teachers and employees of district Ballia, the amount whereof was quantified to more than one crore rupees. The Chief Secretary was directed to bring on record the first information report and to inform the Court as to how this money shall be restored back in the accounts of the teachers and staff concerned. The Senior Superintendent of Police, Ballia was directed to submit the status of the investigation in terms of the first information report lodged.
On 02.11.2010 the Court was informed that as against 47 persons, excluding the Principal and Manager of various colleges against whom the first information report was lodged, 30 have approached the High Court and have been granted protection from arrest till submission of the charge-sheet. 4 persons had surrendered and were granted bail. 9 persons have approached the Apex Court, wherein their arrest has been stayed. It was stated that detail of other 44 persons is still awaited.
The Court again granted time to the Advocate General, who was present in the Court, to inform as to how money shall be restored back in the GPF Account.
On 06.12.2010 the Court after taking note of the audit report submitted by the Finance and Accounts Officer, Office of District Inspector of Schools, Ballia dated 04.12.2006 after detail enquiry in the matter of withdrawal of the money from GPF Account unauthorizedly for payment of salary to the illegally appointed teachers and other staff of various institutions with particulars, required the Secretary, Secondary Education to file an affidavit explaining as to what action is proposed to be taken now on the said report.
The Secretary in his earlier affidavit responded to the said order and disclosed that the amount of money as embezzled was not 12 crore but only 1.20 crore and that the matter was being enquired into in detail, which would take some time.
Subsequently the Secretary filed an affidavit stating therein that the loss of money which had been withdrawn from GPF account was only 4 lacs.
The Court, after recording prima facie opinion that Secretary was deliberately creating a situation whereby real culprit of the embezzlement of GPF amount may go scot free, required the Chief Secretary of the State Government to examine the report of the Accounts and Finance Officer and file his affidavit.
In the order dated 22.12.2010 the High Court specifically took note of the letter of the District Inspector of Schools, Ballia as well as other official documents, which established that the deductions made towards GPF distribution from the salary bills of the teachers and other staff were not deposited in the relevant account and that the said money has been miss-utilized for payment of salary to illegally appointed teachers. The Court, therefore, required the Principal Secretary (Finance) to constitute a team of officers to enquire into exact amount of deductions from the GPF money made and non-deposit of the same in the concerned treasury account.
The Court was of the opinion that probably the Chief Secretary would be able to do something in the matter and therefore required his interference. The Chief Secretary on 12.01.2011 filed an affidavit stating therein that the original documents could not be examined as the original documents are not available with the office of the District Inspector of Schools and a vigilance enquiry has been directed.
The Court on 12.01.2011 granted further time on the asking of the Chief Secretary for computation of the money so embezzled and for making good the amount payable to the GPF Account. On the asking of the Chief Secretary further time was again granted on 24.01.2011.
Affidavit filed by the Chief Secretary on 28.02.2011 admitted fraudulent withdrawal of the money from the GPF Accounts of the teachers and employees and utilization of money so unauthorizedly withdrawn towards payment of salary to illegally appointed teachers and staff of various recognized Intermediate Colleges of district Ballia. The Chief Secretary also referred to the vigilance report dated 15.02.2011 received along with the letter of the Joint Direction, U.P. Vigilance Establishment, Lucknow. The relevant paragraph 3 to 6 and 9 of the vigilance report, referred to by the Chief Secretary, are being quoted herein below:-
"3. That the matter had been referred to the Vigilance Department and an open enquiry was conducted by the Vigilance Department of Varanasi Sector under Superintendent of Police, Vigilance Establishment, Varanasi. The Vigilance Establishment, U.P., submitted its report to the Principal Secretary, Vigilance Department, Government of U.P. Lucknow vide its letter dated 15th December, 20011. A true Copy of the report dated 15.02.2011 and the letter dated 15.02.2011 written by Joint Director, U.P. Vigilance Establishment, Lucknow re being filed herewith and marked as ANNEXURE Nos. CA-1 AND CA-2.
4. That considering the gravity of the charge framed by the vigilance establishment and its report of the open enquiry, the State Government took the decision to lodge First Information Report in the mater relating to Charge No. 1 (relating to fraudulent payment to irregularly appointed teachers and non-teaching staff of aided non-government secondary schools of district Ballia) mentioned in the report under Sections 409/420/467/468/472/201/120-B of I.P.C. And under Sections 13 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988, and to get the matter investigated through Vigilance Establishment. True copy of the D.O. Letter dated 21.02.2011 is being filed herewith as ANNEXURE NO. CA-3 to this affidavit.
5. That consequently in regard to Charge No. 1, a First Information Report has already been lodged on 24.02.2011 on which case Crime No. 36 of 2011 has been registered and its investigation has already been started by the Vigilance Establishment. True Copy of the First Information Report dated 23.02.2001 is being filed herewith and marked as ANNEXURE NO. CA-4 to this affidavit.
6. That regarding Charge No. 2 (relating to disappearance of the records of non-government aided secondary schools relating to teaching and non-teaching staff) mentioned therein the State Government decided to get the investigation of Case Crime No. 3 of 2011 under Section 409 I.P.C. registered at police station Kotwali Ballia and transferred the investigation to Vigilance Establishment from the Civil Police.
9. That in respect of Charge No. 3 relating to forged payment to Shri Ashok Kumar Singh, Assistant Teacher, in Naveen Adarsh Inter College, Isari, Salempur, District Ballia, Shri Kamla Kant, the then Assistant District Inspector of Schools, Ballia, who had the additional charge of Accountant, at the relevant time, has already been removed from service in a departmental proceedings against him concluded earlier, department proceedings have already been initiated after obtaining sanction under Rule 351 (a) of Civil Services Regulations against the then District Inspector of Schools, Ballia Shri Brij Nath Pandey, who has already retired from service on 31.10.2010. The then Accounts Clerk, Shri Panchanan Ram had retired from service on 31.07.2008 and has expired as per the letter dated 25.02.2011 written b the Director Secondary Education. It has also been ordered to file a FIR against the principal of Higher Secondary School, Neerpur, Ballia and to recover the amount paid to Aditya Narain Singh, Assistant Teacher, Biology and the payment made to Chattu Pandey, peon has been found legitimate in the vigilance report. In this connection true copies of the Office Memorandum dated 11.11.2010, 25.02.2011 and the letter dated 25.02.2011 issued by the Director of Education, Secondary, U.P. Lucknow are being filed herewith and marked as ANNEXURE NOS. CA-6, CA-7, CA-8 AND CA-9 to this affidavit."
The records reflect that up to this stage the matter was under consideration before a Single Judge. The Secretary, Secondary Education filed Special Appeal Defective No. 147 of 2001 (Jitendra Kumar vs. Director of Education (Secondary) U.P. Camp Office, 18 Park Road, Lucknow and four others) raising an objection that the writ petition could not be heard by the judge concerned because of change of roster and even otherwise being in the nature of public interest litigation. This special appeal was dismissed vide order dated 14th February, 2011 with a direction that the issues in that regard must be raised at the first instance before the Writ Court.
Accordingly, the Secretary, Secondary Education engaged a private counsel and thereafter raised the same objections on next date of hearing i.e. 28.02.2011. The objections were rejected under order dated 28.02.2011 but a direction was issued that the matter must be placed before Hon'ble The Chief Justice for nominating a Bench to hear the petition. The Hon'ble Chief Justice made an order dated 07.03.2011 assigning the writ petition to one of us (Hon. Arun Tandon, J.).
Against the order dated 28.02.2011 Special Appeal No. 432 of 2011 was filed by the Secretary, Secondary Education, which appeal was decided under order dated 30.03.2011 and the matter was directed to be converted into Public Interest Litigation. Accordingly the writ petition was converted into Public Interest Litigation and was directed to be placed before appropriate Division Bench.
The order-sheet of the present writ petition further reflects that subsequent to the order dated 30th March, 2011 and the order of the Single Judge dated 07.04.2011 noticing the said order, the writ petition was not listed for a period of nearly 6 years before any Bench nor any attempt was made by the State Government to act upon the assurance, which it had given earlier to the Court.
The matter was listed before a Bench on 17.04.2014 when the Principal Secretary, Secondary Education filed an affidavit seeking two months' time to complete the proceedings in compliance of the earlier order of the Court. This two months' time was granted and the petition was directed to be listed in July, 2017.
When the matter came up for hearing before the Court on 11.07.2017, a letter in the shape of instructions dated 10.07.2017 was produced before the Court, which recorded that with reference to the investigation report of the vigilance department sanction from the State Government was asked for in respect of prosecution of the Incharge District Inspector of Schools/the City Magistrate at the relevant time Sri Ram Ganesh. In respect of other officers of the education department and the finance department proceedings were stated to be in progress.
The Court was not satisfied and therefore required the Chief Secretary of the State to respond and inform as to what appropriate action the State proposes to take on the basis of the investigation report submitted by the vigilance department.
An affidavit was filed by the Chief Secretary on 31st July, 2017 and it was disclosed that in response to the letter of the State Government dated 13.01.2011 an open vigilance enquiry was conducted and vigilance report dated 15.02.2011 was submitted. On the basis of the said report the Deputy Secretary, Vigilance vide his letter dated 21.02.2011 has taken following decision:
Þ¼1½ vkjksi la[;k&1 tks tuin cfy;k ds v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa voS/k :i ls QthZ f'k{kdksa@f'k{k.ksRrj dfeZ;ksa dks th0ih0,Q0 en dh /kujkf'k ds QthZ Hkqxrku ls lEcfU/kr gS] ds lEcU/k esa lrdZrk vf/k"Bku dh laLrqfr ds vuqlkj lEiw.kZ izdj.k esa /kkjk&409@420@467@468@ 471@201@120 ch Hkk0n0fo0 ,oa /kkjk&13¼1½Mh@13¼2½ Hkz0fu0v0] 1988 ds vUrxZr vfHk;ksx iathd`r djkdj lrdZrk vf/k"Bku ls foospuk djk;h tk;A mDr foospuk esa Jh jke x.ks'k] fo'ks"k lfpo] m0iz0 'kklu ds izR;kosnu fnukad 16&02&2011 dks Hkh lrdZrk vf/k"Bku }kjk laKku esa fy;k tk;A ¼2½ vkjksi la[;k&2 tks tuin cfy;k ds v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa f'k{kd ,oa f'k{k.ksRrj dfeZ;ksa ls lEcfU/kr vfHkys[kksa dks xk;c fd;s tkus fo"k;d gS] ds lEcU/k esa Fkkuk dksrokyh] cfy;k esa iathd`r eq0v0la0&3@2011 /kkjk&409 Hkk0n0fo0 dh foospuk gsrq lrdZrk vf/k"Bku dks LFkkukUrfjr dj nh tk;sA ;g dk;Zokgh x`g foHkkx ds ek/;e ls lqfuf'pr dh tk;sxhA ¼3½ vkjksi la[;k&3 tks Jh v'kksd dqekj flag] lgk;d v/;kid] uohu vkn'kZ b.Vj dkyst] blkjh lyseiqj] cfy;k dks QthZ Hkqxrku fd;s tkus ls lEcfU/kr gS] ds lEcU/k esa rRdkyhu ftyk fo|ky; fujh{kd] cfy;k Jh c`tukFk ik.Ms;] rRdkyhu ys[kkdkj] Jh deykdkUr o ys[kk fyfid Jh iapkuu jke ds fo:) foHkkxh; dk;Zokgh ds lkFk&lkFk mUgsa fuyfEcr Hkh dj fn;k tk;A ;g dk;Zokgh ek/;fed f'k{kk foHkkx ds ek/;e ls lqfuf'pr dh tk;sxhAß It was then stated that in pursuance to the decision dated 21.02.2011 a first information report dated 23.02.2011 was lodged in the matter relating to Charge No. (1), being Case Crime No. 36 of 2011 under Sections 409, 420, 467, 472, 201, 120-B of IPC and under Section 13(1)(d) and Section 13(2) of Prevention of Corruption Act, 1988 and with regard to Charge No. 2 regarding loss of original records from the office of the District Inspector of Schools/district authorities in district Ballia Case Crime No. 3 of 2011 under Section 409 IPC was registered at police station Kotwali Ballia and the investigation was transferred to Vigilance Department from civil police. Reference was also made to the investigation in respect of Case Crime No. 34 of 2011 under Section 409 IPC, registered at police station Kotwali Sadar, Ballia, the investigation whereof was also transferred to the Vigilance Department. Reference page 8 of the affidavit.
In paragraph 9 of the affidavit it has been stated as under:
"That regarding case crime no. 36/2011 under Sections 409/420/467/472/201/120-B of IPC and Section 13(1)D/13(2) of Prevention of Corruption Act, 1988 lodged on 23.02.2011, the Vigilance Department after conducting investigation submitted its final report dated 29.03.2016. On the basis of vigilance report dated 29.03.2016, the Joint Director Vigilance Department, U.P. Lucknow vide its letter dated 10.06.2016 made the following recommendations which is quoted below:
¼1½ layXu vafre vk[;k ds izLrj&n¼1½ esa of.kZr rF;ksa ds ifjizs{; esa tuin cfy;k esa o"kZ 1994&95 esa dk;Zjr ftyk fo|ky; fujh{kd Jh jes'k x.ks'k rFkk o"kZ 2003 ls 2011 rd dk;Zjr ftyk fo|ky; fujh{kdx.k loZ Jh eukst dqekj f}osnh] dYiukFk jke] deyk dkUr] c`tukFk ik.Ms;] f'ko dqekj vks>k] mes'k dqekj frokjh] ;ksxsUnz dqekj flag] jke 'kj.k flag o jkds'k dqekj flag ,oa mDr vof/k esa dk;Zjr ys[kkf/kdkjh loZ Jh fnyhi dqekj ik.Ms;] deykdkUr o cfyjke ds fo:) /kkjk&409@201 Hkk0n0fo0 rFkk /kkjk&13¼1½ Mh lifBr /kkjk&13¼2½ Hkz0fu0v0&1988 ds v/khu vfHk;ksx pyk;s tkus ds vkSfpR; ij 'kklu d`i;k fopkj dj ysA ¼2½ layXu vafre vk[;k ds izLrj&n¼2½ esa of.kZr rF;ksa ds ifjizs{; esa iz'uxr vof/k ds e/; tuin cfy;k ds vkjksfir ftyk fo|ky; fujh{kdksa] ys[kkf/kdkfj;ksa }kjk vius fufgr LokFkZo'k Lo;a dks ykHkkfUor djus rFkk QthZ fu;qDr f'k{kdksa@f'k{k.ksRrj dfeZ;ksa dks ykHkkfUor fd;k x;kA vr% bl lEcU/k esa foHkkxh; vkfMV djkdj izR;sd vkjksfir vf/kdkjh dh rSukrh dh vof/k esa Hkqxrku djds gksus okyh jktdh; /ku dh {kfr dh olwyh muds osru ls djus ds vkSfpR; ij 'kklu d`i;k fopkj dj ysAß In paragraph 11 of the affidavit it has been stated that in terms of the recommendation of the Vigilance Department a departmental audit team was constituted to assess the amount as per duration of the posting of the concerned and the said audit team ultimately submitted its audit report on 26.07.2017. In the audit report the recommendation contained in the report dated 10.06.2016 of Vigilance Department had been re-produced, which are as under:-
Þ1- o"kZ 1994&95 ds lEcU/k esa ftyk fo|ky; fujh{kd cfy;k dk;kZy; ds dksbZ vfHkys[k miyC/k ugha djk;s x;s] tks vfHkys[k dks"kkxkj ls izkIr gq;s muds vk/kkj ij ;g fu"d"kZ fudkyuk lEHko ugh gSA fd fdruh /kujkf'k th0ih0,Q0 esa tek dh tkuh Fkh] ijUrq mls th0ih0,Q0 ¼ih0,y0,0 8338½ esa tek dj voS/k fu;qDr f'k{kdksa@f'k{k.ksRrj dfeZ;ksa ds osru en esa Hkqxrku dj fn;k x;kA bl lUnHkZ esa lrdZrk vf/k"Bku dh fjiksVZ esa Jherh ek/kqjh JhokLro ¼ftyk fo|ky; fujh{kd½ ds dFku dk mYys[k gS] ftlesa o"kZ 1994&95 esa :0 1]08]79]923&00 th0ih0,Q0 esa tek u djds muds iwoZorhZ ftyk fo|ky; fujh{kd cfy;k ¼Jh jke x.ks'k] rRdkyhu flVh eftLVsªV cfy;k½ }kjk voS/k :i ls fu;qDr f'k{kdksa@f'k{k.ksRrj dfeZ;ksa dks osru en esa Hkqxrku dj fn;k x;kA ;g Hkh mYys[kuh; gS fd ekpZ&1995 esa osru xzk.V ySIl gksus ls cpus ds fy, fu;e fo:) rjhds ls :i;s 3]53]38]8900&00 th0ih0,Q0 ¼ih0,y0,0 8338½ es tek dj ckn esa :0 1]78]45]103&00 osru ds en ls vkgfjr o forfjr fd;k x;kA ftlds fy, rRdkyhu vkgj.k forj.k vf/kdkjh ¼ftyk fo|ky; fujh{kd½ dk mRrjnkf;Ro r; fd;k tk ldrk gSA 2- dks"kkxkj cfy;k ls izkIr vfHkys[kkuqlkj o"kZ 2002 ls 2011 rd th0ih0,Q0 dh /kujkf'k izR;sd osru fcy ds lkFk ih0,y0,0 8009 esa cqd VªkUlQj ds ek/;e ls tek fd;s tkus ds lk{; gSA ;g Hkh rF; gS fd o"kZ 2002 ls 2011 rd ds iz'uxr vof/k esa th0ih0,Q0 dh /kujkf'k ls osru en ls Hkqxrku fd;s tkus ls dksbZ lk{; ugha gSA ifj.kker% fdlh vf/kdkjh ds fo:) olwyh ds ifj.kke dh /kujkf'k dk vkadu fd;k tkuk lEHko ugha izrhr gks jgk gSA Surprisingly, in paragraph 13 of the affidavit an averment has been made that from the audit report dated 26.07.2017 the allegations regarding payment of salary to the teaching and non-teaching staff from GPF, as per the report of the Vigilance Department dated 10.06.2016, has not been found proved. The relevant paragraph of which reads as follows:
Þ10- mDr vk[;k esa Li"V fd;k x;k gS fd lrdZrk vf/k"Bku dh fjiksVZ fnukad 10-06-2016 dh laLrqfr esa vafdr th0ih0,Q0 en ls f'k{kdksa@f'k{k.ksRrj deZpkfj;ksa ds osru Hkqxrku dk vkjksi izekf.kr ugha ik;k x;k D;ksafd o"kZ 2002 ls 2011 rd th0ih0,Q0 [kkrk 8009 esa lEcfU/kr ds th0ih0,Q0 va'k dk fuos'k fd;k tkuk vfHkys[kksa ls izekf.kr gSA lrdZrk foHkkx }kjk viuh vk[;k fnukad 10-02-2016 ds izLrj 13 esa mYys[k fd;k x;k fd o"kZ 2003 ls 2011 rd ds lHkh ftyk fo|ky; fujh{kd }kjk vuqnku ds :i esa fn;s x;s /ku rFkk fu;fer deZpkfj;ksa ds th0ih0,Q0 dVkSrh ds /ku dks QthZ fu;qDr f'k{kdksa@f'k{k.ksRrj dfeZ;ksa ds osru ds :i esa inh; nkf;Roksa dk nq:i;ksx djds Hkqxrku fd;k x;k gS tcfd vkWfMV fjiksVZ ds vk/kkj ij dks"kkxkj cfy;k ls izkIr vfHkys[kkuqlkj 2002 ls 2011 rd th0ih0,Q0 dh /kujkf'k izR;sd osru fcy ds lkFk ih0,y0,0 8009 esa cqd VªkalQj ds ek/;e ls tek fd;s tkus ds lk{; gSA ;g Hkh rF; gS fd o"kZ 2002 ls 2011 ds iz'uxr vof/k esa th0ih0,Q0 dh /kujkf'k ls osru en esa Hkqxrku fd;s tkus dk dksbZ lk{; ugh gSA vr% lrdZrk foHkkx }kjk 2002 ls 2011 rd th0ih0,Q0 ds MkbotZu ds vk/kkj ij vf/kdkfj;ksa ds ftEesnkj crk;k x;k gSA vr% bl ij foLr`r tkap dh vko';drk vfHk;kstu dh Lod`fr ds iwoZ ifjyf{kr gksrh gSA 11- tgka rd iz'u QthZ fu;qDr f'k{kd@f'k{k.ksRrj deZpkfj;ksa ¼ftuds osru jksd fn;k x;k Fkk½ dks osru ds :i esa Hkqxrku fd;s tkus dk iz'u gS] ds lUnHkZ esa voxr djkuk gS fd 'kklu ds v0'kk0i0l0&1233@15&12&2002&1600 ¼211½@2002 fnukad 18-12-2002 ds ifjizs{; esa mi f'k{kk funs'kd ¼O;0f'k0½ f'kfoj dk;kZy; y[kuÅ ds i=kad@vfo0O;ko ¼1½@f'k0@157& ek0&4@24479&81] fnukad 15-01-2003 ds }kjk tkap vk[;k esa mfYyf[kr v/;kidksa@deZpkfj;ksa dk osru jksdrs gq, izR;sd v/;kid@deZpkjh ds lsok vfHkys[kksa dh tkap@ijh{k.k dj fu;ekuqlkj vyx&vyx vk[;k@laLrqfr f'k{kk funs'kd dk;kZy; dks miyC/k djkus gsrq ftyk fo|ky; fujh{kd cfy;k dks funsZ'k fn;s x;s ftldh izfr la;qDr f'k{kk funs'kd vktex<+ dks Hkh lEizsf"kr dh x;hA funs'kky; ds mijksDr i= fnukad 15-01-2002 ds ifjikyu es gh ftyk fo|ky; fujh{kd cfy;k ds i=kad 3775&80 fnukad 28-01-2003 ds }kjk v/;kidksa@deZpkfj;ksa dk osru jksdus gsrq foRr ,oa ys[kkf/kdkjh ek0f'k0 cfy;k dks funsZf'kr fd;k x;kA 12- lh0ch0lh0vkbZ0Mh0 dh fjiksVZ esa yxHkx 379 f'k{kd vkjksfir Fks] orZeku esa muesa ls fdrus f'k{kd dk osru fdl fdl ftyk fo|ky; fujh{kd }kjk fcuk fdlh oS/kkfud vkns'k ds xyr :i ls o"kZ 2003 ls 2011 dh vof/k esa fd;s x;s Hkqxrku dk fu/kkZj.k vfHkys[kksa ds ijh{k.k gksus ds ckn gh gks ldrk gSA bl ijh{k.k ls fdl vf/kdkjh ds le; fdruk xyr Hkqxrku gqvk gS] dk fu/kkZj.k djuk vko';d gSA bldks Li"V djus gsrq foLr`r tkap djds fLFkfr Li"V djus gsrq funs'kd ek/;fed dks 'kklu }kjk funsZf'kr fd;k x;k gSA funs'kd ek/;fed f'k{kk }kjk bl dk;Zokgh dks Li"V djus ds fy, N% lIrkg ds le; dh vis{kk dh x;h gSA vfu;fer f'k{kdksa dh osru Hkqxrku ds oS/kkfudrk ds fo"k; esa tkapksijkUr gh o"kZ 2003 ls 2011 rd fu;qDr ftyk fo|ky; fujh{kdksa dh ftEesnkjh fu/kkZfjr djuk ,oa vfHk;kstu dh Lohd`fr dk fu.kZ; fy;k tkuk lEHko gks ldsxkAß In paragraph 14 details of the action taken on the recommendation of the Vigilance Department dated 17.01.2011 was again reiterated, which are being reproduced herein under:
Þtuin cfy;k ds v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds f'k{kdksa@f'k{k.ksRrj dfeZ;ksa ds th0ih0,Q0 en dh /kujkf'k ls voS/k :i ls fu;qDr ,oa QthZ f'k{kdksa vkfn ds osrukfn ds Hkqxrku ds lEcU/k esa lrdZrk vf/k"Bku }kjk dh x;h tkWp fnukad 10-06-2016 esa dh x;h laLrqfr;ksa ds fcUnq la[;k&1 ds lEcU/k esa voxr djkuk gS fd& ¼1½ tuin cfy;k esa o"kZ 1994&95 esa izHkkjh ftyk fo|ky; fujh{kd@flVh eftLVsªV] Jh jes'k x.ks'k rRle; ih0lh0,Q0 laoxZ ds vf/kdkjh Fks vkSj buds fo:) fu;qfDr foHkkx] lrdZrk vf/k"Bku }kjk dh x;h laLrqfr ds dze esa fu;qfDr foHkkx }kjk muds fo:) vfHk;kstu pyk, tkus ds lEcU/k esa izdj.k lrdZrk lfefr ds le{k izLrqr fd, tkus dk fu.kZ; fy;k x;k gS rFkk rn~uqlkj izdj.k lrdZrk lfefr dks izsf"kr fd;k tk jgk gSA ¼2½ tuin cfy;k esa o"kZ 2003 ls 2011 rd dk;Zjr jgs ftyk fo|ky; fujh{kd Jh eukst dqekj f}osnh] Jh dYiukFk jke] Jh deykdkUr] Jh c`tukFk ik.Ms;] Jh f'ko dqekj vks>k] Jh mes'k dqekj frokjh] Jh ;ksxsUnz dqekj flag] Jh jke 'kj.k flag ,oa Jh jkds'k dqekj flag ds fo:) lrdZrk foHkkx }kjk dh x;h laLrqfr ds vuqlkj dk;Zokgh] vfu;fer f'k{kdksa ds xyr :i ls osru Hkqxrku dh /kujkf'k dks fu/kkZfjr djus ds lEcU/k esa funs'kd] ek/;fed f'k{kk dh vk[;k izkIr gksus ds mijkUr gh fd;k tkuk lEHko gks ldsxkA ¼3½ mDr vof/k esa tuin cfy;k esa dk;Zjr jgs ys[kkf/kdkjh Jh fnyhi dqekj ik.Ms;] Jh deykdkUr ,oa Jh cfyjke ds fo:) lrdZrk foHkkx }kjk dh x;h laLrqfr ds dze esa foRr foHkkx ds dk;kZy; Kki la[;k&,l&2&1331@ nl&2017&133¼19½@2016 fnukad 20-03-2017 }kjk Jh fnyhi dqekj ik.Ms; ,oa Jh cfyjke] foRr ,oa ys[kkf/kdkjh dk;kZy; ftyk fo|ky; fujh{kd] cfy;k ds fo:) vfHk;kstu djus rFkk mDr vijk/kksa dk fdlh vf/kdkfjrk;qDr l{ke U;k;ky; }kjk laKku djus dh Lohd`fr iznku dj nh x;h gSA Jh deyk dkUr rRdkyhu izHkkjh foRr ,oa ys[kkf/kdkjh dk;kZy; ftyk fo|ky; fujh{kd] cfy;k ,oa lg ftyk fo|ky; fujh{kd] cfy;k dks lrdZrk tkWp vk[;k izkIr gksus ds iwoZ gh Jh yaxVw ckck b.Vj dkyst] gfjgkdyk cfy;k ds f'k{kdksa@dfeZ;ks ds th0ih0,Q0 [kkrksa ls /kujkf'k ds xcu ds vkjksi esa vafre :i ls nks"kh ikrs gq, 'kklu ds vkns'k fnukad 11&11&2010 }kjk lsok ls inP;qr fd;k tk pqdk FkkAß The Chief Secretary then submitted that a High Leven Committee has been directed to be constituted by the Special Secretary, Shiksha Anubhag-12, Government of U.P. through Director of Education and to submit a report in that regard. The names of 5 members of the High Level Committee under the Chairmanship of the Additional Direction of Education (Secondary) were also disclosed.
The Court, after noticing the aforesaid facts, required the Chief Secretary in the facts and circumstances to explain as to why the investigation may not be transferred to the Central Bureau of Investigation (CBI) in view of the detail facts, which have been noticed herein above.
The Chief Secretary filed an affidavit. This Court, after going through the affidavit, comes to a prima facie satisfaction that there is an attempt on the part of the State of U.P. including its Chief Secretary to camouflage the fraudulent withdrawal of money from the G.P.F. Account of the teachers and employees of district Ballia in the year 1994-95, which fact is well established from the open vigilance enquiry report of the Vigilance Department dated 23.02.2011, leading to the lodging the first information reports, being Case Crime No. 36 of 2011, registered under Sections 409, 420, 467, 468, 471, 201, 120B IPC read with Section 13(1)(d) and 13(2) Prevention of Corruption Act, 1988, Case Crime No. 3 of 2011 under Section 409 IPC, Police Station Kotwali Ballia and Case Crime No. 34 of 2011, under Section 409 IPC, Police Station Kotwali Sadar, Ballia.
The Court further found that from the investigation report submitted by the Vigilance Department in Case Crime No. 36 of 2011 dated 29.03.2016 along with recommendation of the Joint Direction, as contained in his letter dated 10th June, 2016, fraudulent withdrawal of money from the GPF Account in the year 1994-95 is more than prima facie established and this money had been utilized for payment of salary to illegally and invalidly appointed teachers in district Ballia. On the basis of same vigilance report sanction for prosecution has been granted by the State against Dilip Kumary Pandey and Baliram vide order dated 20.03.2017.
From the affidavit, which has been filed by the Chief Secretary of the State on an earlier occasion as well as from the audit report dated 26.07.2017, which had been relied upon by the Chief Secretary, it was more than clear that 379 teachers and others had been implicated by the Vigilance Department in the matter of wrongful appointment and illegal payment of salary. Out of these 104 such teachers and staff had approached the High Court by means of various writ petitions and that with reference to the order of the High Court dated 25.02.2004 and other orders of the High Court only 85 out of 379 teachers were actually being paid salary now. It is, therefore, an admitted position as per records before the State Government that at least 294 teachers and other staff in district Ballia were wrongfully paid salary and after their salary had been stopped because of illegal and irregular appointment, only 104 had approached the Court, out of which only 85 are now being paid salary.
From where these 294 teachers and staff had been paid salary for years has not at all been considered by the Chief Secretary. It is also an admitted position that no money was allocated by the State Government for payment of salary to these illegally appointed teachers and staff at the relevant time i.e. in the year 1994-95 or subsequent thereto.
Today the Chief Secretary has taken a complete 'U' turn and with reference to the report of the High Level Committee dated 04.08.2017, which is being reproduced herein below, the Chief Secretary has concluded as under:
"(1).............
That the deponent most respectfully submits that from the perusal of abovenoted enquiry report of High Level Committee as well as other documents and records, brought before the deponent, the facts which emerged are as follows:-
¼1½ lrZdrk vf/k"Bku dh fjiksVZ fnukad 10&6&2016 dh laLrqfr ds dze esa f'k{kk funs'kd] ek/;fed ds i= fnukad 27&7&2017 ds ek/;e ls izkIr vkfMV vk[;k esa ;g ik;k x;k gS fd o"kZ 2002 ls 2011 rd th0ih0,Q0 [kkrk&8009 ls lEcfU/kr th0ih0,Q0 va'k dk fuos'k vfHkys[kksa ls izekf.kr gS rFkk bl en ls osru en esa Hkqxrku fd, tkus dk dksbZ lk{; ugha gSA ¼2½ fjV ;kfpdk la[;k&23250@2010 Hkhe flag cuke m0iz0 jkT; o vU; esa ek0 U;k;ky; }kjk ikfjr vkns'k fnukad 11&7&2017 ds vuqikyu esa xfBr lfefr dh vfHkys[k miyC/k ugha gS] dh lrdZrk tkWp ds fu"d"kksZ dk D;k oS/kkfud vk/kkj@vkSfpR; gS \ ¼4½ mi;qZDr rF;ksa ds n`f"Vxr lrdZrk lfefr }kjk lE;d fopkjksijkUr lrdZrk vf/k"Bku dh tkWp vk[;k fnukad 10&06&2016] lrdZrk foHkkx dks okil djrs gq, vfHkys[kh; lk{;ksa ij vk/kkfjr rF;kRed tkWp vk[;k rhu ekg esa iw.kZ dj izLrqr djus ds funsZ'k fn;s tkus dh laLrqfr dh x;h gSA
8. That in compliance of order dated 31-07-2017 of the Hon'ble Court, the deponent is filing the present affidavit for kind consideration of this Hon'ble Court and the same may kindly be taken on record and on the basis thereof, it is humbly prayed that the Hon'ble Court may kindly be pleased to grant four months further time to complete the required proceedings."
It will be seen that in paragraph 15 of his affidavit dated 31.07.2017 the Chief Secretary of the U.P. has stated that in respect of second recommendation of the vigilance report dated 10.06.2016, the Special Secretary, Shiksha, U.P. Government vide letter dated 28.07.2017 has constituted a High Level Committee. It was therefore admitted that in respect of second recommendations of the vigilance department that the High Level Committee had been constituted, but surprisingly on the basis of the recommendation of the same High Level Committee he has drawn an inference in sub para 3 of paragraph 7 of the enquiry report dated 04.08.2017 to the effect that it is not clear as to on what basis the vigilance department has submitted a report in respect of deduction of money from the GPF Accounts in the year 1994-95, qua which the High Level Committee was not required to make any recommendation.
We are informed that Sri Ram Ganesh, who was the then City Magistrate and Incharge District Inspector of Schools, Ballia and had been found to be the main man in the vigilance report for withdrawal of the GPF money and payment from the same towards illegally appointed teachers, is now posted as Assistant Secretary in the U.P. Secretariat at Lucknow and it is in this back ground Chief Secretary prima facie wants to protect his brotherhood. For last 23 years the State Government has been dragging its feet in the matter.
One of the important aspect of the matter which has deliberately not been considered by the Chief Secretary, while raising doubt in respect of the report of the vigilance department dated 10.06.2016 i.e. payment of salary to 379 teachers illegally appointed, is more or less admitted on record from where the salary has been paid to these teachers and staff has completely been ignored and on the contrary shelter is being taken in the matter of loss of the original records.
What is further surprising to note is that on the open vigilance enquiry report of 2011 first information reports, being Case Crime Nos. 36 of 2011, 3 of 2011 and 34 of 2011, have already been registered and after investigation the vigilance department has submitted its report on 10.06.2016 and acting on the said report sanction for prosecution of Dilip Kumar Pandey and Baliram both Finance and Audit Officers in the office of District Inspector of Schools, Ballia has been granted by the State Government vide order dated 20.03.2017. The State Government, for the reason best known to it, is trying to camouflage the entire issue when it was to consider the sanction of Ram Ganesh, the then Incharge District Inspector of Schools, Ballia. The State Government is now trying to question the vigilance report itself.
Similarly, we find that on 25.05.2010 a letter of the Secretary, Secondary Education dated 22nd May, 2010 was produced before this Court which records that a first information report has been lodged against 83 persons by name in respect of miss-appropriation of GPF money of teachers and employees of District Ballia, which is more than one crores of rupees.
We further find that no details are forthcoming from the State as to what has happened between 1994-95 to 2003-2011 in the matter of payment of salary to the illegally appointed teachers and staff in district Ballia as well as in respect of deposit of GPF money in the relevant accounts of validly appointed teachers and staff of district Ballia.
We further find that if the money which had not been deposited in the GPF Account after deduction, two consequences flow (a) no interest would accrued and (b) In case the State Government at the subsequent point of time decided to recoup the money, then who will be responsible for payment of interest. Said aspect has also been ignored by the Secretary.
We are deliberately not referring to the other affidavits, which have been filed and which are form part of the records giving specific circumstance of particular persons appointed in excess of the post, withdrawal of money by fixation of photograph of the persons other than contributor to the GPF money for withdrawing the money. Large number of persons have already been arrested by the police for such fraudulent acts.
We are conscious of the fact that in the case of Secretary, Minor Irrigation and Rural Engineering Services U.P. and others v. Sahngoo Ram Arya and another 2002 (5) SCC 521, the Apex Court observed that although the High Court has power to order a C.B.I inquiry that power should only be exercised if the High Court after considering the materials on record comes to a conclusion that such material discloses prima facie case calling for investigation by the C.B.I. or by any other similar Agency. It was further observed that a C.B.I enquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
In the facts of the case we find that the State Government has not been fair and there are chances of investigation being either derailed or delayed so as to create a situation so that the officers of the State actually involved in fraudulent withdrawal of GPF money and wrongful utilization of the same being permitted to go scot free. While only the Manager and Principal of the institutions involved being made to suffer.
There is another reason for the said prima facie conclusion, namely, that since 1994-95 the State Government has taken more than 23 years to (a) quantify the exact amount of the GPF money, (b) who are the officer actually responsible for such withdrawal and payment of money and (c) even after submission of the report by the vigilance department with reference to Case Crime No. 36 of 2011 the State has adopted a discriminatory attitude, it sanctioned prosecution of district level authorities working in the office of the District Inspector of Schools, it has deliberately delaying its decision on the matter pertaining to grant of sanction for prosecution of Ram Ganesh, (d) constitution of Special Committee under the Chairmanship of the Additional Director of Education, in our opinion, is only an eyewash, inasmuch as no officer at the rank of Additional Director can be expected to give a report against a person who is an I.A.S. Office and presently posted in the Secretariat of the State, (e) the scope of enquiry by the Special Audit Committee was confined to recommendation no. 2 of Vigilance Department only, while the Chief Secretary on mere passing remark of the special audit committee has decided to ask for a fresh report from the Vigilance Department and (f) the State Government had done nothing for years, it wakes up only when orders are passed by this Court.
In the totality of the circumstances on record, we direct that the investigation of Case Crime No. 36 of 2011, registered under Sections 409, 420, 467, 468, 471, 201, 120B IPC read with Section 13(1)(d) and 13(2) Prevention of Corruption Act, 1988 as per decision of Chief Secretary of the State referred in Para 3 of his affidavit dated 04.08.2017, be transferred to the C.B.I. The C.B.I. shall conclude the investigation within a period of three months. All records, which may be required, be provided to the C.B.I. without any demur.
The matter shall be listed on 31st August, 2017 for filing of an affidavit of compliance by the Secretary concerned.
The petitioner may implead the Central Bureau of Investigation (CBI) as respondent no. 11 through Joint Director, Central Bureau of Investigation, 7 Nawal Kishor Road, Hazaratganj, Lucknow today itself and serve a copy of this order upon the said respondent within a week.
List on 31.08.2017.
Date:-08.08.2017 Pkb/23250-10