Muhammed V.A v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939 WP(C).No. 35219 of 2015 (B) ---------------------------- PETITIONER(S): ------------- MUHAMMED V.A S/O.AHAMMED, VALLIKKATTIL HOUSE, THAIKKATTUKARA.P.O., ALUVA - 683 106. BY ADV. SRI.T.G.GOPINATHAN RESPONDENT(S): - -------------- 1. STATE OF KERALA - REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT - SECRETARIAT, THIRUVANANTHAPURAM - 695 033. 2. THE DIRECTOR, - VIGILANCE AND ANTI CORRUPTION BUREAU, - THIRUVANANTHAPURAM - 695 001. 3. THE PRINCIPAL SECRETARY, - LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 4. GRAMA VIKASANA COMMISSIONER, RURAL DEVELOPMENT COMMISSIONER, SWARAJ BHAVAN, NANTHANCODE, KAWDIAR.P.O., THIRUVANANTHAPURAM - 695 003. 5. K.J.TOMY, FORMER VAZHAKKULAM BOLOCK DEVELOPMENT OFFICER, VAZHAKKULAM ALWAYE - 683 105. 6. A.K.SASIKUMAR, FORMER VILLAGE EXTENSION OFFICER, CHOORNIKKARA GRAMA PANCHAYATH, THAIKATTUKARA.P.O., ALWAYE - 683 106 R6 BY ADV. SRI.ASHWIN SETHUMADHAVAN R6,R5 BY ADV. SRI.A.JAYASANKAR R6,R5 BY ADV. SRI.C.V.MANUVILSAN R6,R5 BY ADV. SRI.MANU GOVIND R5 BY ADV. SRI.S.SABARINADH R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.K.P.HARISH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.8.2017, THE COURT ON 19-09-2017 DELIVERED THE FOLLOWING: WP(C).No. 35219 of 2015 (B) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXT.P1: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA DATED 18/5/2009. EXT.P2: TRUE COPY OF THE ENQUIRY REPORT DATED 31/1/2011 FILED BY THE VIGILANCE POLICE. EXT.P3: TRUE COPY OF THE LETTER DATED 27/4/2011 OF THE 2ND RESPONDENT SEND TO THE 4TH RESPONDENT. EXT.P4: TRUE COPY OF THE PRIVATE COMPLAINT BEARING CMP.NO.548/2014 DATED 27/3/2014. EXT.P5: TRUE COPY OF THE REPORT FILED BY THE VIGILANCE POLICE BEFORE THE HON'BLE VIGILANCE COURT, DATED 7/7/2015. EXT.P6: TRUE COPY OF THE ORER DATED 4/11/2014 OF THE HON'BLE VIGILANCE COURT, THRISSUR. EXT.P7: TRUE COPY OF THE APPLICATION FOR PROSECUTION SANCTION THROUGH THE COUNSEL, ADVOCATE.T.G.GOPINATHAN. EXT.P8: TRUE COPY OF THE REPLY LETTER DATED 4/5/2015 ISSUED BY THE 3RD RESPONDENT. EXT.P9: TRUE COPY OF THE APPLICATION DATED 29/9/2015. EXT.P10: TRUE COPY OF THE REPLY NOTICE DATED 28/10/2015 ISSUED BY THE 4TH RESPONDENT. EXT.P11: TRUE COPY OF THE ORDER DATED 16/11/2012 OF THE 3RD RESPONDENT. EXT.P12: COPY OF LETTER NO.E7 (V3/10/CRE) 8836/10 DATED 27.4.2011 ISSUED BY THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS -----------------------: EXHIBIT R3(a): COPY OF G.O(P)NO.220/97/LAD DATED 2.10.1997 AND G.O(P) NO.181/98/LAD DATED 2.9.1998. EXHIBIT R5(A): COPY OF G.O.DATED 2.10.1998. EXHIBIT R5(B): COPY OF LIST OF BENEFICIARIES PREPARED BY THE CHOORNIKKARA GRAMA PACHAYAT FOR THE YEAR OF 2006. EXHIBIT R5(C): COPY OF RECEIPT NO.13 DATED 10.8.2010, EVIDENCING THE REPAYMENT OF THE GRANT AMOUNT, ALONG WITH INTEREST THERETO, BY SMT.SHEMI SADATH. /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 35219 of 2015 ----------------------------------------------Dated this the 19[th] day of September, 2017** ## **JUDGMENT** The prayers in the writ petition are as follows: - _“a) issue a writ of certiorari or other appropriate writ or order quashing Exhibits P10 and P11 being illegal and unconstitutional._ - _b) issue a writ of mandamus or other appropriate writ or order directing the 1[st] respondent to accord sanction to prosecute respondents 5 and 6 on the basis of Exhibit P7 within a time frame as may be fixed by this Hon'ble Court.”_ 2. It is contended by learned counsel for the petitioner that the petitioner had filed Exhibit P1 petition alleging grave irregularities in the implementation of the Indira Awas Yojana in Choornikkara Grama Panchayat. A report was submitted by the Vigilance and Anti Corruption Bureau before the Vigilance Court, in which respondents 5 and 6 herein were also found to be involved in the irregularities. By Exhibit P3, departmental action was recommended as against respondents 5 and 6. When no action was taken, the petitioner had approached the Court of the Enquiry Commissioner and Special Judge, Thrissur. 2 _**WP(C).35219/15**_ By Exhibit P6 dated 4.11.2014, the Court passed the following order: _“Heard the counsel. I have no doubt, clear acts of misconduct were committed in selecting the 2[nd] accused and excluding the legitimate claim of the complainant. The recommendations are unwholesome. However, an investigation can be ordered only after getting sanction. Counsel prays for producing sanction.”_ 3. The petitioner thereupon submitted a request for sanction which was rejected by the Government by Exhibit P10 order. Pursuant to Exhibit P5 report, a memo of charges was issued to respondents 5 and 5 and taking note of the written statement submitted by them and considering the recommendation of the Commissioner of Rural Development, the Government came to the conclusion that the explanations submitted by respondents 5 and 6 are satisfactory and in view of the reports of the superior authorities, it was decided to drop the disciplinary action initiated against them. Exhibit P11 order was accordingly issued by the Government. 4. Impugning Exhibits P10 and P11 orders, learned counsel for the petitioner would contend that the action of the Government is in violation of public interest and amounts to condonation of acts of corruption committed by _**WP(C).35219/15**_ 3 respondents 5 and 6. The learned counsel also relies on the decisions of the Apex Court in _**Dhananjaya v. Vasudevan**_ [(1995) 5 SCC 619), _**U.P.Residents Employees Co-op. House B.Society and others v. New Okhla Industrial Development Authority and another**_ [(2004) 9 SCC 670] and _**State of Maharashtra and Others v. Arun Gulab Gawali and Others**_ [(2010)9 SCC 701]. It is contended that the State being the prosecutor and an offence committed being a crime against the society, the State has to take action for bringing the accused to book and this responsibility cannot be lightly shrugged off. 5. The learned Government Pleader would contend that pursuant to the findings in the Vigilance Enquiry report, disciplinary proceedings as recommended therein were taken against respondents 5 and 6. A memo of charges was served on them and their explanation thereto was received. After considering the explanations submitted by the delinquent officers, the disciplinary authority felt that the explanations should be accepted and there was no necessity for continuing the disciplinary proceedings. This fact was recommended to the Government and the Government, by Exhibit P11 order, permitted the dropping of the disciplinary proceedings 4 _**WP(C).35219/15**_ initiated. It is further submitted that the request for sanction for prosecution was also considered by the Government and it was found that such sanction need not be granted, since the vigilance enquiry report had only recommended disciplinary action against respondents 5 and 6. It is further submitted that the writ petitioner was a rival applicant for the benefits of the Awas Yojana and he has no locus standi to maintain this writ petition as against the orders issued by the Government dropping the disciplinary proceeding on the basis of the explanations offered by the officers. 6. I have considered the contentions advanced on either side. The petitioner had preferred a complaint that led to the vigilance enquiry in which respondents 5 and 6 were also arrayed as accused officers. Disciplinary action was recommended as against them. Such action also appears to have been duly initiated by the issuance of a memo of charges. Written explanations were submitted by the charged officers. On consideration of the explanations offered, the disciplinary authority recommended to the Government the dropping of the disciplinary proceedings. After considering the factual aspects, the Government sanctioned the dropping of the disciplinary proceedings. 5 _**WP(C).35219/15**_ 7. Going by the provisions of the Kerala Civil Services (Classification Control and Appeal) Rules, 1960, the issue of continuation or otherwise of a disciplinary proceedings is a matter well within the power of the disciplinary authority to decide. The disciplinary authority having recommended the dropping of the proceedings, and the Government having sanctioned the said course of action, I fail to see how the petitioner, who is a total stranger to those proceedings, can be said to be aggrieved by the order of the Government. The continuation of the disciplinary proceedings is clearly a matter for the Government to decide. As regards Exhibit P10 order refusing sanction for prosecution, it is clear from Exhibit P5 report that the Vigilance report had only recommended disciplinary action against respondents 5 and 6. No prosecution was recommended. The grant of sanction for prosecution, even in view of Exhibit P6, is a matter for the Government to decide on a consideration of the factual aspects involved. No legal grounds justifying interference of this Court in exercise of its power of judicial review have been brought to my notice as against Exhibit P10 order refusing sanction. This Court therefore finds no good ground warranting interference with Exhibit P10 order. 6 _**WP(C).35219/15**_ In the circumstances, I am of the opinion that this writ petition filed challenging Exhibits P10 and P11 is devoid of merit. The writ petition fails and is accordingly dismissed. **ANU SIVARAMAN JUDGE** _vgs_