IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 15.03.2011 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition No.27454 of 2010 A.Shankar ... Petitioner vs. 1. The Chief Secretary to Government, Public (Special.A) Department, Secretariat, Chennai 600 009. 2. The Secretary to Government, Home (SC) Department, Secretariat, Chennai 600 009. 3. The Director, Vigilance and Anti-Corruption, NCB.21, P.S.Kumarasamy Raja Salai,Raja Annamalaipuram, Chennai 600 028. 4. Sunil Kumar, IPS. ... Respondents Petition under Article 226 of the Constitution of India for the relief as stated thereunder. For petitioner : Mr.M.Radhakrishnan For R1 to R3 : Mr.J.Raja Kalifulla, G.P. assisted by Mrs.Lita Srinivasan, G.A. For R-4 : Mr.A.V.Radhakrishnan O R D E R The petitioner herein seeks to issue a writ of mandamus directing respondents-1 to 3 to initiate proper action immediately on the basis of his complaint dated 15.10.2010 as against the 4th respondent herein under the Prevention of Corruption Act, 1988. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner herein, who is a suspended staff/Special Assistant of the Directorate of Vigilance and Anti Corruption (DVAC) over a 'telephone tapping scandal', had submitted a complaint dated 15.10.2010 to the Government as well as the DVAC against the 4th respondent, who is an IPS Officer of 1988 Batch allotted to Tamil Nadu Cadre. The crux of the allegation in the complaint is that the 4th respondent, who is holding the post of Joint Director, DVAC, and vested with the responsibility of ensuring probity in public life and a corrupt-free administration, is possessing assets disproportionate to his known source of income to the tune of Rs.10 crores. The details of immovable properties said to have been purchased through such means are given in the complaint thus:- a. One acre land in Yelagiri, Vellore Dt. b. 2 grounds measuring 4800 sq. ft. Manapakkam c. One acre in Thaiyur Village in Kancheepuram Dt. d. Four grounds in Sholinganallur e. 4 grounds in Karapakkam f. ½ acre three places in (total 1 ½ Acres), Ooty g. 25 cents in Kutralam h. 1 acre in Hosur District. i. 20 cents in Kovaipudur, Coimbatore District. It is further alleged in the complaint that the 4th respondent is also in possession of movable properties in the form of jewels, fixed deposits, shares and debentures in his name and in the name of his family members. The particulars furnished by the petitioner being suggestive that the 4th respondent has committed offences punishable under Sec.13(1)(e) read with 13 (2) of the Prevention of Corruption Act, despite the repeated requests made by the petitioner to immediately transfer the 4th respondent from the post of Joint Director (DVAC), which is an important post of supervising corruption cases against public servants, and to suspend him immediately in order to have a free and fair investigation in the criminal misconduct committed by him, no action is so far initiated by respondents-1 to 3 nor he was apprised of the action taken, if any, by way of a reply or communication. Therefore, the petitioner has come up with the present writ petition to direct respondents-1 to 3 to take appropriate action against the 4th respondent based on the complaint of the petitioner dated 15.10.2010. 3-A. Mr.M.Radhakrishnan, learned counsel appearing for the petitioner would strongly submit that though the petitioner has made a written complaint dated 15.10.2010 giving exhaustive details of the movable and immovable assets said to have been acquired by the 4th respondent disproportionate to his known source of income, respondents-1 to 3 have neither registered a https://hcservices.ecourts.gov.in/hcservices/ complaint nor transferred/suspended the 4th respondent from the present post. When the main purpose of the State Vigilance Commission is to advise the Government on the major administrative problems of prevention of corruption in public services in general and the manner in which individual cases of corruption that are brought to light should be dealt with, the utter failure on the part of respondents-1 to 3 to investigate into the complaint of the petitioner in detail would not only reflect the unfair and unreasonable attitude on their part but also violative of Article 14 of the Constitution of India. 3-B. By referring to Clause 10 (2) and (5) under Part-II of the Manual of the DVAC, learned counsel further submits that once a petition is received in the Directorate, the same should be properly scrutinised with the purpose of identifying whether the acknowledgement or reply should go to the petitioner and petitions received from well-known or identifiable organisations should invariably be replied to; that being so, in the present case, since it is apparent that no action was ever seem to have been taken on a serious complaint and no reply was made to the petitioner by the authorities, the direction sought for may be issued. 3-C. In support of his submission, learned counsel placed reliance on a judgment of the Apex Court in National Insurance Co. Ltd., v. Judgal Kishore (1988 (1) SCC 626) for the proposition that it has been consistently held by courts that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. In the present case, the duty cast upon respondents-1 to 3 in considering the request of the petitioner in terms of what is provided in the Manual having not been carried out, the connected confidential records may be called for to find out the action taken by the authorities in giving effect to the written complaint filed against the fourth respondent. 3-D. By referring to the following observation made by the Apex Court in Vineet Narain v. Union of India (1998 (1) SCC 226), “ These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in https://hcservices.ecourts.gov.in/hcservices/ trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.“ learned counsel would urge that, in the given case, a positive and suitable direction may be issued by way of mandamus directing the respondents-1 to 3 to properly probe into the allegations, submit a preliminary report and to take further action on the basis of such report. 4-A. Stoutly opposing the prayer made in the writ petition, Mr.Raja Kalifulla, learned Government Pleader appearing for respondents-1 to 3, submits that the petition, dated 15.10.2010, containing certain allegations against the 4th respondent, was received by the Government on 21.10.2010 and the same was forwarded to the Director General of Police (DGP) on 10.11.2010 for enquiry and report. In the letter, dated 21.12.2010, the DGP had stated that a discreet preliminary enquiry conducted on the petition by the Inspection General (IG) of Police at the Intelligence Wing revealed that the allegations made against the 4th respondent are totally false, motivated and baseless. Further, the Officer who enquired into the complaint found that the petition might have been sent to tarnish the image of the Senior Police Officer/R4, who is known for his unblemished service and high integrity. On the basis of the outcome of the discreet enquiry held by a top-ranking Police Officer attached to the Intelligence Wing, the Government is of the view that no further enquiry or proceeding is required in the case and therefore, the question of registration of a case with reference to the complaint of the petitioner does not arise at all. 4-B. By adverting to the observation of the Apex Court in P.Sirajuddin vs. State of Madras (1971 AIR 520 = 1970 SCR (3) 931) and that of this Court in 2010 (4) CTC 762 (A.K.Viswanathan vs. State of Tamil Nadu) to the effect that if a complaint is received against any high ranking public servant with acts of dishonesty, etc., before lodging a first information against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer, learned Government Pleader submits that on the basis of the above ratio laid down by the Courts, the Government, on receipt of the written complaint from https://hcservices.ecourts.gov.in/hcservices/ the petitioner, thought it fit to hold a discreet preliminary enquiry by appointing the Inspector General of Police of the Intelligence Wing, who after collecting information relating to the allegations made in the written complaint of the petitioner and enquiring into the authenticity thereof, ultimately came to the conclusion that the petitioner, who was arrested by the CBCID while he was serving in DVAC, Chennai, in connection with a Phone Tapping Case, during the pendency of trial of the case, approached this Court by filing a writ petition with a view to delay the departmental proceedings initiated against him and the 4th respondent herein, who is holding the post of Joint Director of the very same Directorate, in his official capacity, took all earnest steps to prove the ill intention of the petitioner behind filing the writ petition, as a result of which, the writ petition was dismissed and ultimately, steps were taken to proceed with the departmental enquiry against the petitioner; and only in such circumstances, enraged by the persistent efforts of the said Officer in pursuing the proceedings against him, the petitioner made the baseless complaint against the Officer, who is known for his unblemished service and high integrity. Inasmuch as the complaint is the clear handwork of a person, who is ill-motivated and rancorous against the Officer for his honest efforts in pursuing the proceedings connected to the phone tapping scandal which in a way had its impact on the reputation of the Directorate, this Court may straight away turn down the plea of the petitioner. 5. Mr.A.V.Radhakrishnan, learned Counsel appearing for the 4th respondent, arguing in line with the submissions of the learned Government Pleader, sought for dismissal of the petition with exemplary costs on the ground that it is nothing but a malicious prosecution. 6. With reference to the grievance of the petitioner that his complaint against R-4 containing serious allegations of acquiring assets disproportionate to the known sources of income so as to attract provisions of the Prevention of Corruption Act was not at all considered, this Court called for the relevant file and the same has been placed before this Court. Before proceeding further, it may be quite appropriate to extract below Clause-10 (2)(5) at Part-II of the Manual under the caption 'Disposal of Petitions/Complaints, “10. Action on petitions received (2) When petitions are received by the Directorate of Vigilance and Anti-Corruption, a Preliminary Enquiry may be conducted after obtaining the specific orders of the Director, except in respect of All-India Service https://hcservices.ecourts.gov.in/hcservices/ Officers, Heads of Departments and Collectors, in which case, the petitions will invariably be forwarded to the Chief Secretary to the Government straight away, for necessary action, without conducting any form of enquiry. (5) Petitions received in the Directorate should be properly scrutinised with the purpose of identifying whether an acknowledgement or reply should go to the petitioner and petitions received from well- known or identifiable organisations should invariably be replied to. Petitions addressed to the Directorate and received in succession to similar petitions received earlier from individuals who desire to know the result of their earlier complaints, should also be replied to.“ It is explicit from a reading of the above provisions that in the case of an IPS Officer as that of the fourth respondent, a preliminary enquiry will not ordinarily follow as the petition/complaint would be forwarded to the Government. As to the next course provided in the Manual, Clause 15(vii) (a) & (b) under Part-III with the caption 'Enquiry and Investigation Procedures” is relevant and the same is quoted below:- “15. Authority for taking up Enquiries/Investigations (vi) in respect of Members of All-India Services, District Collectors, Heads of Departments and Managing Directors/Chief Executives of Statutory Bodies, Corporations and State owned Companies, the following procedure will be followed (a) the Director of Vigilance and Anti- Corruption shall not start a Preliminary Enquiry, unless specifically authorised by the Government, in consultation with the Vigilance Commissioner; (b) the Government may order Detailed Enquiries, grant permission to register criminal cases and trap cases.” 7. A close and combined reading of the above clauses in the Manual relevant to the case of the 4th respondent would indicate that on the petition received against the said Officer, it is for the Government to give authorisation for holding a preliminary enquiry and depending upon the outcome thereof, a detailed enquiry or registration of a criminal case would follow. Now, in https://hcservices.ecourts.gov.in/hcservices/ the light of the above provisions and of the grievance and present allegation of the petitioner that no action was ever taken on his complaint to proceed against the 4th respondent, this Court has to examine whether any action was taken by the State by ordering an enquiry and in the light of the outcome of such enquiry, any further action followed. 8. From the file made available to this Court, it is seen that, by confidential letter No.SC/6971-1/2010 - dated 10.11.2010, of the Principal Secretary to Government, the petition, dated 15.10.2010, received from the petitioner herein, was sent to the Director General of Police, with a request to send a report in that regard to the Government, whereupon, the DGP, requested the Inspector General of Police, Intelligence, Chennai, to conduct an enquiry into the matter and send a report on the allegations to the Chief Office immediately as a reply was due to the Government in that regard. Consequently, the said Officer conducted a discreet enquiry and came to a conclusion that 'all the properties owned by the 4th respondent and his family members were intimated properly to the Government and recorded'. In the course of the discreet enquiry, the IG Intelligence categorically found thus:- “ It is learnt that Tr.A.Shankar (petitioner) while he was working in V&AC, Chennai, was arrested by CB CID in connection with the Phone Tapping case and the case is P.T. Meanwhile, he had approached the Madras High Court to delay the departmental proceedings against him and also to drag on the case. It is learnt that the Joint Director, V&AC, Chennai in his official capacity pursued the same and got the petition dismissed and proceeded with the enquiry in the phone tapping case. It is learnt that in order to thwart the attempt of the Joint Director V&AC in taking action against him (petitioner) he had sent the petition in question.” By way of summary, the IG Intelligence ultimately concluded as follows:- " The allegations levelled against Tr.Sunil Kumar, IPS,JD, V&AC, Chennai are totally false, motivated and baseless. The petition might have been sent to tarnish the image of the senior police officer, who is known for his unblemished service and high integrity. The discreet enquiry report, dated 16.12.2010, of the IG https://hcservices.ecourts.gov.in/hcservices/ Intelligence was sent to the Government on 21.12.2010, by the DGP vide letter C.No.319/S&C1/2010. 9. Therefore, the records make it clear that at the instance of the Government, as provided in the Manual as well the directives of the Courts, a discreet preliminary enquiry was conducted by a responsible top-level police officer viz., IG of Intelligence, who not only recorded his findings in respect of the properties owned by the Official but also the background in which the complaint came to be lodged against the Official by the petitioner, who was to a great extent aggrieved by the acts of the official in pursuing the departmental and court proceedings against him in respect of the Phone Tapping Case. Under such circumstances, one may not find justification in the claim of the petitioner for apprising him with reference to the immediate action taken in the matter, for, what was ordered was a discreet enquiry at an initial stage and the details of such enquiry will not be made public in terms of clause-18 of the Manual at Part-IV with the heading Preliminary Enquiry. The said clause prescribes that usually, the first enquiry into a complaint or information is in the nature of a preliminary enquiry which should be conducted with the utmost secrecy and witnesses should normally be contacted only through source or otherwise, indirectly. 10. By order, dated 23.12.2009, passed in W.P. No.18966 of 2009 filed by the petitioner herein on the ground that when criminal case has been launched for an alleged misconduct, the departmental enquiry should be stayed till disposal of the criminal case, the plea of the petitioner was turned down, and as found by the IG Intelligence, the 4th respondent was vigorous in pursuing the departmental proceedings against the petitioner for the act of phone tapping which instance was said to have its own adverse implications on the reputation of the Directorate. In such background of the present case, it must be highlighted herein that it is the duty of the State to track down and punish all delinquent officers and it is certainly in accordance with justice and fairplay that their conviction should be sought for only by unquestionable means. Of course, a genuine and bona fide complaint or information which contains allegations touching the honesty and integrity of an authority like that of the fourth respondent, who is a watchdog to prevent corruption in public service, must be duly enquired into in the interest of public as otherwise, it would cause havoc on societal spectrum. At the same time, if straight away action is directed to be taken without proper examination and scrutiny of frivolous and ill-motivated complaints against upright officials of integrity and honesty, then proper functioning of the Agency itself would come to a grinding halt, which situation should never be allowed https://hcservices.ecourts.gov.in/hcservices/ to arise, that too, at the instance of courts dispensing justice. 11. Therefore, before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type as alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a complaint against a person, especially one who like the 4th respondent occupying a top position in the Directorate, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. Keeping the same in mind, in the present case, since at the instance of the Government, the DGP nominated the IG-Intelligence, a responsible top-ranking Police Officer to find out the correctness or otherwise of the allegations in the complaint made by the petitioner, no exception can be taken to such enquiry, prima facie, proceeded in a fair and reasonable manner. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge sheet is submitted and a full-scale enquiry is launched. Similarly, when an enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Only thereafter, the ordinary law of the land must take its course and further inquiry be proceeded with, in terms of the Code of Criminal Procedure by lodging a first information report under the provisions of the Prevention of Corruption Act. 12. The preliminary discreet enquiry in this case conducted at the instance of the State Government by entrusting the task with the IG-Intelligence through the Orders of the DGP, Chennai was only to collect material evidence substantiating the allegations and when there was no incriminating documents or materials found available and acquisition of properties was only subsequent to due information to the Department/Government by the Official concerned coupled with the fact that the petitioner was much aggrieved by the persistent efforts of the 4th respondent in conducting the departmental/court proceedings, it would be a too big pill to swallow that there was no action at all on the complaint of the petitioner by the authorities/State. According to me, the steps taken by the State Government for conducting the https://hcservices.ecourts.gov.in/hcservices/ preliminary enquiry, discreet in nature, can never be termed to be unfair particularly when the clauses highlighted above from the Manual of the Directorate prescribe such course, which has been duly resorted to. In this regard, it is pertinent to point out that in State of Haryana vs. Bhajan Lal (AIR 1992 SC 604), the Apex Court has categorically held, “the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds”, after outlining the basic concept that the investigation of an offence is the field exclusively reserved for the Police Officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code. 13. In the case on hand, the only grievance of the petitioner is that there was no follow-up action on his petition/complaint, dated 15.10.2010, as against R-4 and he was not informed anything of the outcome thereof. Such grievance has no basis at all for two reasons. Firstly, the moment the complaint was received from the petitioner, the State Government by looking into the position occupied by the 4th respondent, without proceeding in an abrupt and hasty manner by right away probing into his probity, rightly chosen to order a secret and discreet enquiry by a top-level responsible police officer at the rank of Inspector General of Police from the Intelligence Wing. Secondly, the said IG- Intelligence, after completing the discreet enquiry, submitted a Report to the effect that the complaint is nothing but a 'tit for tat' by the petitioner over the 4th respondent's honest efforts in seriously pursuing the departmental enquiry against the petitioner, who is the suspended staff of the Directorate and also in getting his aimless writ petition dismissed by the High Court. Since the above discussion makes out the things clear that the complaint was duly followed up by way of a preliminary- discreet enquiry at the hands of a top level police officer from the Intelligence Wing and clinching findings have been recorded by way of a detailed report to the effect that R-4 is an Officer with unblemished service record and high integrity and further, the complaint itself seemed to have been presented with baseless allegations obsessed with mala-fides because of the initiatives taken against the petitioner by the 4th respondent in pursuing the Departmental Proceedings and getting the earlier writ petition of the petitioner herein dismissed, the grievance of the petitioner no more exists at all. As regards the other grievance that he was not informed about the outcome of the enquiry, it must be made clear that Clause 10 (5) under Part II of the Manual has no application to cases where a discreet enquiry is