Sumahiya M.M. v. Director of Vigilance, Anti-Corruption Bureau, Thiruvananthapuram and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 ``` ## **`WP(C) NO. 36567 OF 2023`** ## **`PETITIONER/S:`** ``` SUMAHIYA M.M. AGED 32 YEARS ``` ``` D/O. MUHAMMED ALI M.A. MOOKKADA HOUSE, MUDICKAL P.O.,ERNAKULAM DISTRICT, PIN - 683542 ``` ``` BY ADVS. ESM.KABEER C.SHEEBA KIRAN JOSE ``` ## **`RESPONDENT/S:`** - **`1 THE DIRECTOR OF VIGILANCE ANTI-CORRUPTION BUREAU, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033`** - **`2 THE SUPERINTENDENT OF POLICE V.A.C.B CENTRAL ERNAKULAM, PIN - 682017`** - **`3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030`** - **`4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) KUNNATHUNADU, PERUMBAVOOR, ERNAKULAM, PIN - 683542`** - **`5 MARAMPALLY SERVICE CO-OPERATIVE BANK LTD NO.E265`** - **`REP. BY ITS SECRETARY, MARAMPALLY P.O, ERNAKULAM, PIN - 683105`** - **`6 THE DIRECTOR BOARD MARAMPALLY SERVICE CO-OPERATIVE BANK LTD REP. BY ITS PRESIDENT, MARAMPALLY P.O; ERNAKULAM, PIN - 683105`** - **`BY ADVS.`** ``` R1 TO R4 BY SRI A RAJESH, (SPL. GP VIGILANCE) SMT S REKHA SR PP ``` W.P.(C) No.36567 of 2023 ..2.. ``` R5 AND R6 P.N.MOHANAN AMRUTHA SURESH(K/000971/2016) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.36567 of 2023 **==> picture [20 x 9] intentionally omitted <==** ## **K.BABU, J ------------------------------------------------W.P.(C) No.36567 of 2023 ------------------------------------------------Dated this the 28[th] day of May, 2024** ## **JUDGMENT** ## The prayers in the Writ Petition are as follows:- “(i) To call for the records relating to Exhibit P1 to P7 and to issue a Writ of Mandamus directing the 2nd respondent to conduct an enquiry about the issues raised in Exhibit P5 petition in a time bound manner. (ii)To issue a Writ of Mandamus directing the 1st respondent to take appropriate action pursuant to Exhibit P4 complaint as expeditiously as possible. (iii)To issue any writ, order or direction directing the respondents 5 and 6 not to proceed with Exhibit Pl notification till Exhibit P4 and P5 complaints are being processed and disposed. (iv) Dispense with the filing of the translation of vernacular documents. (v)Any other reliefs also may be granted in order to meet out justice considering the circumstances of the case” ## 2. Heard the learned Senior Counsel Smt Sumathi ## Dandapani assisted by Advocate Muhammed Kabeer W.P.(C) No.36567 of 2023 **==> picture [20 x 9] intentionally omitted <==** appearing for the petitioner, Sri. A Rajesh, the learned Special Government Pleader and Sri.P.N.Mohanan, the learned Standing Counsel for respondent No.5. - Facts: 3. The Marampally Service Co-operative Bank Ltd, on 12.12.2022, issued a notification for appointment to the posts of Salesman, Peon, Night Watchman, Part time Sweeper etc. The petitioner submitted application to the post of Peon. The petitioner came to know from reliable sources that the Director Board of the Marampally Service Co-operative Bank Ltd had already decided the persons to be appointed to the six posts notified. On 30.12.2022, the petitioner submitted a complaint (Ext.P3) before the Assistant Registrar of Co-operative Societies (General), Kunnathunadu (respondent No.4) seeking an enquiry into the allegations levelled by her that the Director Board had already taken a decision to appoint the following six persons to the notified vacancies:- W.P.(C) No.36567 of 2023 ..5.. (a) Latheef S/o Ibrahimkutty, Kadavil, Marampilly, - (b) Suhail S/o, Ismail, Poonapilly(H), Manjapetty, Marampilly P.O. (c)Muhammed Shafi, S/o Nazar, Nayattuparambil, Marampilly P.O. (d)Bheema Beevi, W/o Rahim Kallekuzhy, Kunnukara, Marampilly (e)Fayaz Muhammed, S/o Muhammed (Kunhami), Mukkada, Mudickal P.O., - (f) The D/o the Sweeper working in the Bank 4. Consequently respondent No.4 instructed the Board of Directors to conduct the selection process in a transparent manner and also in accordance with the provisions of the Kerala Co-operative Societies Act and Rules. On 30.12.2022, the petitioner had also submitted a representation (Ext.P3) before the Joint Registrar of Cooperative Societies, Ernakulam (respondent No.3) raising the same allegations. The petitioner also submitted a W.P.(C) No.36567 of 2023 **==> picture [20 x 9] intentionally omitted <==** complaint before the Vigilance and Anti-Corruption Bureau seeking an enquiry into the allegations (Ext.P5). Respondent No.3 issued a direction to the Board of Directors to conduct the selection process with the help of an approved agency recognized by the Registrar of Cooperative Societies. The written test was scheduled to be held on 09.09.2023. The petitioner specifically alleges that respondent Nos. 5 and 6 had already decided the persons to be appointed and that the members of the Director Board received Rs.10 Lakhs each from said persons as bribe for appointing them. 5. The Dy. Superintendent of Police, VACB, Central Range Ernakulam submitted a statement on 12.12.2023 contending that as the appointment process was found to be in initial stage and no appointment was seen made, there was nothing to suggest the intervention of the Vigilance in the matter. 6. The Secretary of the Co-operative Society, for and on behalf of respondent Nos. 5 and 6 filed a counter W.P.(C) No.36567 of 2023 **==> picture [20 x 9] intentionally omitted <==** affidavit. Respondent Nos. 5 and 6 pleaded that as directed by the circular of the Joint Registrar, an outside agency namely ‘Kairali Education Trust’ conducted a written examination on 10.02.2024 and the Managing Committee conducted an oral examination of the successful candidates on 21.02.2024. And thereafter, on 23.02.2024, a ranked list was published. The Secretary of the Co-operative Society further stated that all the notified vacancies were filled up from the ranked list and the appointees joined duty on 26.02.2024. 7. On 27.02.2024, the petitioner filed an affidavit stating that her complaint stands proved by the selection and appointment of persons mentioned by her in her complaint dated 30.12.2022. In the affidavit, the petitioner specifically stated that the Board of Directors appointed the candidates after accepting bribe. The petitioner further stated that more than 30 candidates had applied for the notified posts but the appointments were given to the predetermined persons after obtaining W.P.(C) No.36567 of 2023 **==> picture [20 x 9] intentionally omitted <==** bribe. The learned Senior Counsel submitted that, as early as on 30.12.2022, the petitioner got reliable information that respondent No.6, after obtaining bribe, had decided to appoint persons named in paragraph 3 of the writ petition. As persons pointed out by the petitioner as early as on 30.12.2022, from whom the Director Board members allegedly received bribe, have been appointed, the learned Senior Counsel points out that the petitioner could prima facie establish that the members of the Director Board committed offences under Sections 7 and 13(1(a) of the Prevention of Corruption Act, 1988. The learned Senior Counsel submitted that an enquiry into the allegations levelled by the petitioner is highly required. 8. The learned Special Government Pleader submitted that the Vigilance and Anti-Corruption Bureau had no role to play in the initial stage as no appointment as alleged by the petitioner had happened. The learned Special Government Pleader further submitted that in the present scenario if the statement of the petitioner that six W.P.(C) No.36567 of 2023 **==> picture [20 x 9] intentionally omitted <==** persons pointed out by her long back were appointed is true, this would be a case which requires a preliminary enquiry. The learned counsel appearing for respondents 5 and 6 submitted that the selection process was done in a transparent manner with the aid of an approved outside agency and there is nothing to show that the Director Board members received any bribe as alleged. 9. The notification for the appointment was issued on 12.12.2022 for six posts as seen from Ext.P1. In Ext.P3 complaint submitted before the Joint Registrar on 30.12.2022, the petitioner had specifically alleged that the Secretary and the members of the Director Board received Rs.10 lakhs each from six persons and the selection process is only a camouflage. In Ext. P3 complaint dated 30.12.2022, the petitioner specifically named the persons who allegedly agreed to give bribe seeking appointment. The same allegations were levelled by the petitioner on 30.12.2022 before respondents 1 and 2. It is submitted on behalf of the co-operative society W.P.(C) No.36567 of 2023 **==> picture [26 x 9] intentionally omitted <==** that written examination was conducted by a private agency namely Kairali Education Trust on 10.02.2024 and the oral examination was conducted on 21.02.2024. It is pertinent to note that the persons stated to have given bribe have been appointed by respondent Nos. 5 and 6. The petitioner could prima facie establish her allegations. I am satisfied from the pleadings and the submissions that an enquiry into the allegations levelled by the petitioner is required. 10. The persons against whom the allegations are levelled are public servants as provided in the Prevention of Corruption Act, 1988. The learned Senior Counsel and the learned Special Government submitted that the bar under Section 17A is not applicable in the present facts and circumstances. The specific allegation is that the members of the Director Board and the Secretary of the co-operative society received bribe for appointing six persons. W.P.(C) No.36567 of 2023 ..11.. 11. Section 17A of the Prevention of Corruption Act reads thus:- “ **17-A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.-** (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval- (a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government; - (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government; W.P.(C) No.36567 of 2023 ..12.. - (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: PROVIDED that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: PROVIDED further that the concerned authority shall convey its decision under this Section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.” 12. Prior approval of the competent authority is required when an enquiry into an offence alleged to have been committed by a public servant where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties. This Court has considered the scope of Section 17A in _**Shankarabhat and others v.**_ W.P.(C) No.36567 of 2023 ..13.. _**State of Kerala**_ [2021 (5) KHC 248] and _**Venugopal and others v. State of Kerala**_ [2021 KHC Online 566]. In _**Shankarabhat**_ , this Court considered the question whether the approval as provided in Section 17A is a prerequisite for every inquiry or enquiry or investigation into every act done by public servant in discharge of his official function. This Court after examining the scope of Section 17A held that any commission of offence or allegation of acts of public servant which is ex facia criminal or constitute an offence or even demanding illegal consideration will not fall within the scope of Section 17A. This Court in _**Venugopal and others**_ (Supra) held thus:- “27. The purpose behind the enactment of Section 17A of the Act is to give protection to public servants from the threat and ignominy of malicious and vexatious inquiry/investigation and likelihood of harassment for taking honest decisions. This provision aims to ensure that those public servants who have the responsibility to take vital decisions are not subjected to frivolous complaints and to make available a screening mechanism. W.P.(C) No.36567 of 2023 ..14.. This purpose is fully achieved when a constitutional court takes decision with regard to the inquiry/investigation into an offence allegedly committed by a public servant. “ 13. After analsying the facts of this case, this Court is satisfied that an enquiry into the allegations levelled by the petitioner is necessary. Therefore, the bar under Section 17A would not come into play. In the result, respondent No,2 is directed to conduct an enquiry into the allegations levelled by the petitioner and proceed in accordance with law. Respondent No.2 shall complete the enquiry within three months from this day. The Writ Petition is allowed as above. **Sd/K.BABU JUDGE** kkj W.P.(C) No.36567 of 2023 ..15.. ## **`APPENDIX OF WP(C) 36567/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE NOTIFICATION ISSUED BY THE 5TH RESPONDENT DATED 12/12/2022 Exhibit P2TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 6.01.2023 Exhibit P3TRUE COPY OF THE REPRESENTATION DATED 30/12/2022 SUBMITTED BEFORE THE3RD RESPONDENT Exhibit P4TRUE COPY OF THE PETITION DATED 30/12/2022 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P4(a)TRUE COPY OF THE POSTAL RECEIPT OF EXHIBIT P4 DATED 30-12-2022 Exhibit P5TRUE COPY OF THE PETITION HAS SUBMITTED REPRESENTATION BEFORE THE 2ND RESPONDENT DATED 30.12.2022 Exhibit P6TRUE COPY OF THE ORDER NO. C.R P(1)01/2023 ISSUED BY THE 3RD RESPONDENT DATED 19.08.2023 Exhibit P7TRUE COPY OF THE ADMISSION TICKET DATED 26/08/2023 ISSUED TO THE PETITIONER ```