Sathyan Naravoor Souparnika v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938** **WP(C).No. 32130 of 2016 (M)** **----------------------------** **PETITIONER(S): -------------** **SATHYAN NARAVOOR SOUPARNIKA, NARAVOOR, KOOTHUPARAMBU, KANNUR DISTRICT.** **BY ADVS.SRI.GEORGE POONTHOTTAM SRI.D.ANIL KUMAR** **RESPONDENT(S):** **--------------** ## **1. UNION OF INDIA** - **REPRESENTED BY DEPARTMENT OF PERSONNEL & PUBLIC GRIEVANCES, NEW DELHI.** **2. THE SECRETARY TO GOVERNMENT** - **MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI.** **3. THE CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS DIRECTOR, NEW DELHI.** **4. STATE OF KERALA** - **REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **5. DR. JACOB THOMAS, IPS DIRECTOR OF VIGILANCE AND ANTICORRUPTION BUREAU, TRIVANDRUM-695 001.** **R1,R2 BY ADV. SRI.KRISHNADAS P.NAIR, CGC R3 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. R4 BY ADV. ADVOCATE GENERAL:SRI C P SUDHAKARA PRASAD R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2016, THE COURT ON 08-12-2016 DELIVERED THE FOLLOWING:** ## **WP(C).No. 32130 of 2016 (M)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF COMMUNICATION DATED 18.06.2015 ISSUED BY THE GOVERNMENT WITH ENCLOSURES.** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 20.05.2010 ISSUED BY THE TKM INSTITUTE OF MANAGEMENT.** **EXHIBIT P2(A) TRUE COPY OF THE COMMUNICATION DATED 02.09.2011 ISSUED BY THE TKM INSTITUTE OF MANAGEMENT.** **EXHIBIT 3 TRUE COPY OF THE REPORT SUBMITTED BY THE SUPERINTENDENT OF POLICE WITH COVERING LETTER.** **EXHIBIT 4 TRUE COPY OF THE LETTER DATED 19.09.2015 ISSUED BY THE PETITIONER.** **EXHIBIT 5 TRUE COPY OF THE SHOW CAUSE NOTICE NO.1383/SPL.C3/2016/GAD DATED 27.01.2016.** **EXHIBIT 6 TRUE COPY OF THE LETTER DATED 24.06.2016 ISSUED BY THE PETITIONER.** **EXHIBIT 7 TRUE COPY OF THE LETTER DATED 19.09.2015 ISSUED BY THE PETITIONER.** **EXHIBIT 8 TRUE COPY OF THE LETTER NO.24010/42/99-IPS-II DATED 19.10.2015.** **EXHIBIT 9 TRUE COPY OF THE LETTER NO.68576/SPL.C3/2015/GAD DATED 03.12.2015.** **EXHIBIT 10 TRUE COPY OF THE LETTER NO.24010/42/99-IPS-II DATED 06.01.2016.** **EXHIBIT 11 TRUE COPY OF THE COMMUNICATION NO.1383/SPL.C3/2016/GAD DATED 09.08.2016 ISSUED BY THE GOVERNMENT.** **EXHIBIT 12 TRUE COPY OF THE GOVERNMENT LETTER NO.11017/47/2005-AIS(III) DATED 27.12.2005.** **RESPONDENT(S)' EXHIBITS:NIL** **True Copy /** **P A to Judge** ## **SUNIL THOMAS, J.** ## ================= ## **W.P(C).No.32130 of 2016** ================= Dated this the 8[th] day of December, 2016 ## **JUDGMENT** Petitioner herein claims himself to be a public spirited person championing the cause of the public. The 5[th] respondent herein is the present Director General of Police in the service of Kerala Cadre in All India Service. He is in charge of the Vigilance and Anti Corruption Bureau. During his tenure as the Inspector General of Police, he was appointed as the Managing Director of Kerala Transport Development Financial Corporation, a fully government owned undertaking. While so, he put in an application requesting the fourth respondent to sanction leave for three months with effect from 05.01.2009. It was sanctioned by the government as an extraordinary leave for three months from 05.01.2009 or from the date of avail. He availed the leave from 06.03.2009. It is stated that he joined the TKM Institute of Management, Kollam as its Director on the basis of an application invited by the said Institute to fill up the said post, which is alleged to be a full time job. He had received a monthly payment of Rs.1,69,500/- from the Institute towards remuneration. While so, he addressed the Government on W.P(C).32130/16 2 25.05.2009 seeking to extend the extraordinary leave for a period of three months. It was granted by order dated 20/7/2009 with effect from 06.06.2009. It appears that, specifically, the alleged remuneration by the management of Institute and matters related thereto were the subject matter of a vigilance enquiry conducted by the Department of Vigilance and Anti Corruption Bureau. Confidential verification was undertaken through the Superintendent of Police. By a confidential communication given to the Superintendent of police on 31.02.2009, it was informed that the fifth respondent discontinued from the post since the permission sought to work in the private institute was not acceded by the Government. It is seen from the communication that he had worked as the Director of the institute from 1[st] April 2009 till 31[st] August 2009. It also indicated that he was paid a monthly honorarium, after deducting TDS, through his bank account. He was also provided with vehicle for his travel. The fifth respondent had received the amount from 01.04.2009 ending on 31.08.2009. The quantum of benefit received by using the vehicle provided by the Institute is not available on record. 2. It is alleged by the petitioner that these acts of the fifth respondent amounts to a corrupt practice under the Prevention of Corruption Act. The petitioner appraised the second respondent W.P(C).32130/16 3 seeking action under the provisions of the PC Act. Ext.P3 is the report submitted by the Superintendent of Police concluding the investigation/enquiry. Having come to know about the alleged illegal methods by which the matter has been settled, petitioner brought this to the notice of the second respondent by Ext.P4. It is alleged that no investigation or enquiry was conducted as to whether the fifth respondent had received salary from the Government while he was on leave. No enquiry was also conducted regarding the manner and method by which the repayment was effected. It was alleged that there was a concerted effort to hush up the proceedings in relation to the subject matter in issue and even after the act of the Government;a notice calling upon him to give an explanation for attracting major punishment under the All India Service (Discipline and Appeal) Rules, 1968 was issued. According to the petitioner herein, the act of the fifth respondent is covered by Rule 13(1)(b) of the Conduct Rules. Alleging that respondents 1 to 4 in collusion with the fifth respondent had hushed up the entire matter, this writ petition was filed seeking a writ in the nature of certiorari calling for the records leading to the conclusion contained in Ext.P3 report of the investigation under the provisions of the Prevention of Corruption Act, 1988 and set aside the same. He also sought for a direction to the third respondent to investigate and W.P(C).32130/16 4 take action as mandated under law into the matters enquired and resulted in Ext.P3. 3. Notice was taken by respondents 1 to 4. However, notice was not issued to the fifth respondent. The matter was heard on the admission itself. Respondents appeared and fourth respondent filed a detailed statement traversing the various allegations. It was contended that the fifth respondent while holding the post of Managing Director of Kerala Transport Development & Financial Corporation applied for leave without allowance for completing the research papers, as a part of the research studies. He worked for a private management institute M/s.TKM Institute of Management, affiliated to Kerala University and received a monthly remuneration of Rs.1,69,500/- without prior permission from the Government. Rule 13(1)(b) of AIS Conduct Rules provides that no person in service shall except with the previous permission of the Government negotiate for, or undertake any other employment. Show cause notice was issued to him based on the confidential enquiry. At this time, the 5[th] respondent remitted the amount to the Institute that he had accepted. However, no action was recommended by the VACB, since the officer had repaid the salary. It was decided that no further action was required in the case and the matter was communicated to the W.P(C).32130/16 5 Government of India. However, the Government of India as per letter dated 27.12.2005 had requested clarification from the State Government as to why disciplinary action has not been taken against the fifth respondent since it was in violation of the AIS Conduct Rules. Later, Government examined the issue and after obtaining explanation from the officer concerned, ratified the action of the officer in having remitted the salary amount to the Institute. It was contended that being a service matter, petitioner has no locus standi to challenge the proceeding and a public interest litigation is not sustainable. It was further stated that Ext.P3 was the report of a confidential verification in respect of certain allegations levelled against the fifth respondent. In Ext.P3 itself, it was specifically mentioned that no further action was necessary. A confidential report obtained in the course of disciplinary proceeding cannot be challenged. The writ petition is not maintainable as long as the petitioner has no personal interest in the matter. It was further contended that though the petitioner alleged that accused had committed the act under the PC Act, he had not made any complaint before the appropriate authroity for taking cognizance of the offence under any of the penal laws. It was further contended that the petitioner had suppressed the fact that he had earlier filed writ petition against the fifth respondent raising various other W.P(C).32130/16 6 allegations, which was dismissed by judgment in W.P(C).No.1694 of 2015. The present writ petition was filed only to unleash the fifth respondent with malafide motive and for political reasons. 4. On the basis of the above pleadings, learned counsel for the petitioner and the learned Advocate general on behalf of the fourth respondent were heard in extenso. Learned counsel for the CBI submitted that he will abide by any direction given by this Court. 5. The specific contention of the learned counsel for the petitioner is that the act committed by the fifth respondent amounted to a corrupt practice. Further, an investigation was done by the Superintendent of Police against the Inspector General of Police, his superior officer, fully knowing well that at one point of time he may become the Director General of Police. The investigating officer did not verify as to whether the fifth respondent had received emoluments and salary. It was further argued that criminal act done by the person cannot be effaced by a repayment of the money received. It was further contended that Government cannot compound or condone the offence by pleading guilty. 6. Learned Advocate General clarified that enquiry resulting in Ext.P3 was neither an investigation nor an inquiry as W.P(C).32130/16 7 contemplated under the Cr.P.C. According to the learned Advocate General, is was only a verification of certain facts on the basis of the source information. Hence, it cannot be deemed to be an investigation or an enquiry susceptible to a writ proceeding. It was a confidential verifiction done by the vigilance department. 7. Learned Advocate General relying on the Rule 2C of All India Services (Discipline and Appeal) Rules 1969, contended that in the case of a member of the Service serving in connection with the affairs of the State or who is deputed for service in any company, association or body of individual, whether incorporated or not, which is wholly or substantially owned or controlled by the Government it is the State Government, or in a local authority set up by an Act of the Legislature of a State, the Government of that State. Hence, State Government is competent to conduct necessary action. Learned Advocate General also referred to the Manual of Vigilance and Anti-Corruption Laws in Kerala and stated that by virtue of G.O(P).No.18/97/Vig. dated 05.04.1997, the Director, Vigilance and Anti-Corruption Bureau may conduct confidential verification for ascertaining whether a particular information or complaint calls for a formal enquiry. This will be done without recording the statement of witness and in total W.P(C).32130/16 8 confidentiality. It was stated that enquiry resulting in Ext.P3 was such an enquiry as contemplated under the above Government Order. 8. It was further stated that by Ext.P3, entire issue was elaborately considered by the verification officer, which was ultimately approved by the Director of the Vigilance and Anti Corruption Bureau. The above Superintendent of Police had reported all the facts revealed in the course of verification, touching upon the availing of leave and working in the Institute as Director. It was stated that the fifth respondent provisionally took charge as director on 1-4-2009. The Manager of the institute officially wrote to the Government for allowing the service of counter petitioner to be used by the Institute as the Director. It is also stated that the fifth respondent continued his research while holding the post as Director. It was stated that he had requested for leave for another three months. Though his leave was sanctioned on 20.07.2009, as the Government sanction was not received, management relieved counter petitioner from the post of Director with effect from 31.08.2009. He rejoined as the MD of Kerala Transport Development Financial Corporation. With anticipation of Government sanction, management had paid a honorarium of Rs.1,69,500/- per month and also provided W.P(C).32130/16 9 transportation facility. This was confirmed by the management. It was asserted by them that it was not a salary but, an honorarium for the services rendered by him. The verification further revealed that 5[th] respondent had repaid all the amount received by him towards remuneration in view of the non receipt of Government sanction. The Government in its statement had clarified that since he was on leave without allowance, he had not received salary and hence there was no double payment. Virtually he worked without any remuneration . Consequently there was no loss to the exchequer. In the light of above, enquiry officer had recommended that no further action should be taken on that. It was stated that regarding the allegation of misuse of the official vehicle, he had verified the log book of the vehicle involved and noted that the fifth respondent had submitted the books to his successor on 06.03.2009, the day on which he entered on extraordinary leave. He has not used the official vehicle thereafter. Hence, the allegation that he had used the official vehicle while on leave was also found to be false. After scrutinizing the confidential verification report, Director approved the confidential verification report and by Ext.P3, forwarded it to the Additional Chief Secretary of Government of the Vigilance department. The Government took a decision at the level of the Additional Chief Secretary on 6/12/2011 not to proceed further W.P(C).32130/16 10 holding that the allegation was not sustainable. 9. It is pertinent to note that the only allegation of the petitioner herein is that the enquiry was conducted by an officer much below the rank of the fifth respondent. The allegation is that he filed such a report fully knowing that the fifth respondent at one point of time would become the Director General of Police. Absolutely, there is no allegation that at any point of time either the Government or any of its agency ,or the fifth respondent in any manner induced, pressurized, influenced and compelled the officer who conducted the enquiry in giving a favourable report. The report was based on definite and cogent reasons. However, for the mere reason that the enquiry officer is subordinate in rank to the officer who is being investigated, it cannot be presumed that he will be pre-determined. There is nothing on record to doubt bona fides of the enquiry officer. It was accepted by the Director and the Government was accordingly intimated. Even though the petitioner had alleged that it was an act of corruption falling within the ambit of PC Act, petitioner has not moved any of the authorities till now raising the allegation of corrupt practice. It is also pertinent to note that there is no allegation that the findings arrived at by the Superintendent of Police was not based on cogent, convincing materials. Ultimately, it is for the concerned authority to take W.P(C).32130/16 11 appropriate decision on the basis of the report, which was done. 9. Petitioner had claimed that CBI enquiry should be conducted to look into the allegations. It is to be noted that there is no matter now under investigation by any of the agency. Further, the entire allegations and the facts constituting it are supported by records. The fact that he availed leave, it was sanctioned, he has held the post of Director and also he had received the remuneration called by name honorarium are not in dispute. Management itself had admitted those facts which are reiterated by the fifth respondent. Further, the purpose of availing leave was for conducting his research activities, which seems to have been done by him during the above period. Further, there is no specific allegation that the Superintendent of Police did not conduct an impartial verification. On a mere apprehension that the fifth respondent is a superior to a Superintendent of Police, his bonafides cannot be doubted. There is nothing on record which give rise to a reasonable suspicion of malafides. Hence, all the above allegations are either based on admitted facts or supported by documents. There is no scope for any further investigation, much less by a premier agency like CBI. Whether it involves any corrupt practice or any other offence is not made out in the writ W.P(C).32130/16 12 petition. For that, CBI enquiry does not appear to be warranted. 10. Referring to **Gopakumar B Nair v. CBI ((2014)** **5 SCC 800),** learned counsel for the petitioner contended that a non compoundable offence cannot be the basis of a settlement between the parties, but it can be quashed under section 482 Cr.P.C. However, such powers should be exercised with care and caution and depends on the facts of each case. It was held that in a matter involving corruption, it cannot be considered as a mere private offence. It was further contended relying on the decision in **Ramesh Kumari v. State (NCT of Delhi) ((2006)2 SCC 677)** and **Lalitha kumari v. Government of U.P. ((2014)2 SCC** **1)** that it is a duty of the police to register FIR at the moment the cognizable offence is brought into notice. On the other hand, learned Advocate General relied on the decision reported in **Jaleel** **P.P. v. P.K.Muralikrishnan and Others (2014(1) KHC 672** **(DB)** to contend that in service matters, a third party having no concern with the case at hand cannot claim to seek any locus standi to give any relief whatsoever. In **Rajnit Prasad v. Union of India and Others ((2000)9 SCC 313),** the Supreme Court held that, generally, public interest of general importance is not involved in disciplinary proceedings, even against highly placed W.P(C).32130/16 13 officers of Government of India. It was held that disciplinary proceedings are essentially a matter between employer and employee and a stranger cannot be said to have any interest in it. In fact, the case related to chargesheet issued to the Joint Director of the CBI. These decisions apply to the facts of this case. 11. It is also to be noted that the Government has a specific case that though the petition is styled as a public interest litigation, it is not in accordance with Rule 164 of Kerala High Court Rules. There is no averment in the petition that he is filing it in the form of private interest litigation. There is nothing also to show that the credentials of the petitioner herein or that he is a person, who is championing the cause of the public. On the other hand, there is some record that the petitioner herein had filed earlier writ petition against the fifth respondent, which also ended in dismissal of the writ petition evidenced by Annexure-R4(a). It related to certain alleged corrupt practices of the fifth respondent while he was holding the charge of Director of Ports. Learned Advocate General argued that the petitioner herein has been chasing the fifth respondent with these proceedings which indicates a clear case of personnel vendetta. In the light of nature of alelgation and Ext.R4(a), this contention cannot be brushed W.P(C).32130/16 14 aside. Learned Advocate General buttressed his arguments by further relying on the decisions reported in **Sakiri Vasu v. State of U.P (2008(1) KLT 724 (SC))** to contend that merely because of the person has a grievance that his crime has not been registered by the police, he cannot ordinarily rush to Court with a petition under section 482 Cr.P.C. Alternate remedy lies under sections 36 and 164(3) before the concerned police officials. In **Thomas V.C. v. Achamma Thomas and Another (2009(2) KHC 693) DB)** , this Court deprecated the practice of filing writ petitions or petitions under section 482 Cr.P.C upon the pleading of the complainant that the complaint is not being properly investigated by the investigating agency. The concept was again reiterated in **State of West Bengal and Others v. Committtee for Protection of Democratic Rights, West Bengal and Others ((2010) 3 SCC 571).** Having regard to the above facts, I feel that reliefs sought in the writ petition cannot be granted. Petition is without any merit and is hence dismissed. Sd/- **SUNIL THOMAS Judge** Sbna/ True Copy / P A to Judge