This is the writ petition challenging the GO order which hurdle the V&AC police send appavu complaints on velumani, Kamaraj and EPS. This WP coming admission before new CJ bench today [1/4, 11:35] Sekarreporter1: Super [1/4, 12:26] Sekarreporter1: IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W. P. No. of 2020 M. APPAVU, Ex. MLA DMK Party #14/90 A, Main Road Lebbaikudiyiruppu Mehendragiri Post, Radhapuram Taluk Thirunelveli District -627 133 …Petitioner Versus 1. The Chief Secretary to Government, Government of Tamil Nadu, Fort St., George, Secretariat, Chennai – 600 009 2. The Secretary to Government, Personnel and Administrative Reforms (N) Department, Government of Tamil Nadu, Fort St., George, Secretariat, Chennai – 600 009 3. The Vigilance Commissioner and Commissioner for Administrative Reforms, Government of Tamil Nadu, Fort St., George, Secretariat, Chennai – 600 009 4. The Secretary, Public (SC) Department, Government of Tamil Nadu, Fort St., George, Secretariat, Chennai – 600 009 …Respondents AFFIDAVIT OF THE PETITIONER I, M. APPAVU, Ex. MLA, son of Mr. Muthuvelayutham, Indian, aged about 68 years, residing at #14/90 A, Main Road, Lebbaikudiyiruppu, Mehendragiri Post, Radhapuram Taluk, Thirunelveli District -627 133, now temporarily come down to Chennai do hereby solemnly affirm and sincerely state as follows: 1. I am the petitioner herein and as a whistle blower for the betterment to the society and to the general people, and well acquainted with the facts and circumstance of the case. 2. I submit that I was basically teacher of Middle School at my native district and served as teacher to the rural pupil from 1980 to 1996. I am being basic member of Diravida Munnetra Kazagam. I contested in my party symbol in Tamil Nadu assembly elections and I won three times consecutively from Radhapuram assembly constituency. Hence I served to the people of Radhapuram assembly constituency from 1996 – 2001, 2001- 2006 and 2006-2011. My election result for the term of 2016–2021 is pending with the Hon’ble Supreme Court to declare. However I continue my service to the people despite I am not sitting
[1/4, 11:37] Sekarreporter1: [1/4, 11:19] Krisnaraja Dmk: This is the writ petition challenging the GO order which hurdle the V&AC police send appavu complaints on velumani, Kamaraj and EPS.
This WP coming admission before new CJ bench today
[1/4, 11:35] Sekarreporter1: Super
[1/4, 12:26] Sekarreporter1: IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W. P. No. of 2020
M. APPAVU, Ex. MLA
DMK Party
#14/90 A, Main Road
Lebbaikudiyiruppu
Mehendragiri Post, Radhapuram Taluk
Thirunelveli District -627 133 …Petitioner
Versus
1. The Chief Secretary to Government,
Government of Tamil Nadu,
Fort St., George,
Secretariat, Chennai – 600 009
2. The Secretary to Government,
Personnel and Administrative Reforms (N) Department,
Government of Tamil Nadu,
Fort St., George,
Secretariat, Chennai – 600 009
3. The Vigilance Commissioner and
Commissioner for Administrative Reforms,
Government of Tamil Nadu,
Fort St., George,
Secretariat, Chennai – 600 009
4. The Secretary,
Public (SC) Department,
Government of Tamil Nadu,
Fort St., George,
Secretariat, Chennai – 600 009 …Respondents
AFFIDAVIT OF THE PETITIONER
I, M. APPAVU, Ex. MLA, son of Mr. Muthuvelayutham, Indian, aged about 68 years, residing at #14/90 A, Main Road, Lebbaikudiyiruppu, Mehendragiri Post, Radhapuram Taluk, Thirunelveli District -627 133, now temporarily come down to Chennai do hereby solemnly affirm and sincerely state as follows:
1. I am the petitioner herein and as a whistle blower for the betterment to the society and to the general people, and well acquainted with the facts and circumstance of the case.
2. I submit that I was basically teacher of Middle School at my native district and served as teacher to the rural pupil from 1980 to 1996. I am being basic member of Diravida Munnetra Kazagam. I contested in my party symbol in Tamil Nadu assembly elections and I won three times consecutively from Radhapuram assembly constituency. Hence I served to the people of Radhapuram assembly constituency from 1996 – 2001, 2001- 2006 and 2006-2011. My election result for the term of 2016–2021 is pending with the Hon’ble Supreme Court to declare. However I continue my service to the people despite I am not sitting member of the present assembly and trying more hard to protect the rights and interests of common people.
3. I submit that the Union of India has amended The Prevention Of Corruption Act 1988 in 2018 through Act 16 0f 2018, and the amendments were given effect from 26.07.2018.
4. I submit that a new section 17A was inserted through the amendment Act 2018 and the same reads as follows:
“17A. 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
(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.”
5. I submit that the State Government has passed GO Ms. No. 173 Personnel and Administrative Reforms (N) Department on 19.12.2018 in Compliance with the provisions of section 17A of the Prevention of Corruption Act, 2018 and the same reads as follows:
ASTRACT
“Public Servants – Allegation of Corruption – Complaints / Petitions received — Procedure to be followed consequent to introduction of section 17A (1) in the Prevention of Corruption Act, 1988 (as inserted by Central Act 16 of 2018) — Guidelines — Issued.
Personnel and Administrative Reforms IN) Department
G.O. (Ms.) No.173 Dated: 19.12.2018
1. Prevention of Corruption (Amendment) Act, 2018 (Central Act 16 of 2018) notified in the Gazette of India Extraordinary, dated 26 I’ July, 2018.
2. From the Directorate of Vigilance and Anti-Corruption Letter No.29P79 / VAC-4 / 2018, dated 20.08.2010
ORDER:
Preventing / controlling / eradicating corruption in public service has always been the endeavour of the Government for ensuring good and transparent governance. It is an institutional necessity to inculcate the highest principles of honesty, integrity and devotion to duty, among public servants. For achieving the goal of zero tolerance for corruption in public service, several instructions were issued earlier.
2. The Government of India have now introduced a new Section 17A (1) in the Prevention of Corruption Act, 1988 (as inserted by Central Act 16 of 2018) which is extracted below for reference:
“17 A. (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
(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.”
3. In compliance with Section 17A(1) of the Prevention of corruption Act, 1988, the Government have carefully examined the issue by revisiting the existing procedures for conducting Preliminary Inquiry / Detailed Inquiry / Registering of Regular Case, etc. and accordingly prescribe the following guidelines to be adopted for processing the complaints of alleged corruption against public servants:
i) On receipt of complaint / allegation / source report relating to offences alleged to have been committed under the Prevention of Corruption Act, 1988, the Directorate of Vigilance and Anti-Corruption shall initially take up a factual verification in the first instance and shall weed out baseless, vague, frivolous, vexatious complaints.
ii) No action is required to be taken on anonymous complaints, irrespective of the nature of allegations and such complaints need to be filed.
iii) If a complaint contains verifiable allegations, it shall be verified with the complainant for owning/ disowning, as the case may be, and if no response is received from the complainant within a reasonable time, the said complaint may be filed as pseudonymous.
iv) Repeated complaints regarding the same allegations and previously disposed may be filed.
v) Complaints / Petitions received against the elected members of the Local Bodies and the Officers and employees working under- the local bodies, shall be forwarded to the Tamil Nadu Local Bodies Ombudsman for further action under the Tamil Nadu Local Bodies Ombudsman Act, 2014.
4. After factual verification as laid down in para 3 above and on admitting the complaints / petitions by the Directorate of Vigilance and Anti-Corruption, 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, for the purpose of obtaining previous approval under Section 17A(1) of the Prevention of Corruption Act, 1988, the Directorate of Vigilance and Anti-Corruption shall adopt the following procedure:
i) where an enquiry or inquiry is proposed against a Group A or Group B Officer, who is or was employed at the time when the offence was alleged to have been committed, the Directorate of Vigilance and Anti-Corruption shall forward the materials to the authority competent to remove him from his office, through Vigilance Commission.
ii)where an enquiry or inquiry is proposed against a Group C or Group D officer or institutional staff, i.e., officers and employees of any Body or Board or Corporation or Authority or Company or Society or Public Sector Undertaking or Trust or University or Autonomous Body, established by an Act, who is or was employed at the time when the offence was alleged to have been committed, the Directorate of Vigilance and Anti-Corruption, shall forward the materials to the authority competent to remove hint from his office, with a copy marked to the monitoring authority concerned as indicated in para 6 below and to the Vigilance Commission.
iii) where an enquiry or inquiry is proposed against officers belonging to different categories (Groups A, B, C, D and Institutional Staff) in the same department, who are jointly involved, the Directorate of Vigilance and Anti-Corruption, shall forward the materials to the authority competent to remove the officer who holds the highest post, by adopting the procedure laid down above in (i) or (ii), as the case may be.
iv) where an enquiry or inquiry is proposed against an Officer of the All India Service, who is or was employed at the time when the offence was alleged to have been committed, the Directorate of Vigilance and Anti-Corruption, shall forward the materials to the Secretary to Government concerned, Public/Home/ Environment and Forests Department, through the Vigilance Commission.
v) where an enquiry or inquiry is proposed against Public Servants other than those mentioned above, the Directorate of Vigilance and Anti-Corruption, shall forward the materials to the Secretary to Government, Public (SC) Department, through the Vigilance Commission.
vi) where it is proposed to register a Regular Case for investigation against Public Servants, the Directorate of Vigilance and Anti-Corruption, shall forward the materials to the authority competent to remove him from his office, through the Vigilance Commission, with a copy marked to the monitoring authority concerned as indicated in para C below.
5. The competent authority, on receipt of materials, shall arrive at a conclusion for it to be conveyed, within the time limit prescribed in the second proviso to section 17(A) (1) of the Prevention of Corruption Act, 1988, directly to the Directorate of Vigilance and Anti-Corruption, with a copy marked to the Secretary to Government / Head of the Department concerned, as the case may be and to the Vigilance Commission.
6. The Government directs that; such cases shall be monitored in the following manner:
(ii) in respect of Group C and Group D Officers for whom the Head of the Department is the Competent Authority and in respect of the institutional staff, the Secretary to Government of the Administrative Department concerned shall monitor the requests sought by the Directorate of Vigilance and Anti-Corruption, periodically once in a month, with such Head of the Department and send the minute of the meeting to Directorate of Vigilance and Anti-Corruption and Vigilance Commission.
(iii) In respect of all other public servants, the Vigilance Commissioner shall monitor the requests sought by the Directorate of Vigilance and Anti-Corruption, periodically once in a month, with the Head of the Department / Secretary to Government of the Administrative Department concerned, as the case may be. The Directorate of Vigilance and Anti-Corruption shall be kept informed accordingly.
6. I submit that in view of the large scale corruptions by the Chief Minister of Tamil Nadu and other Ministers , myself and various party functionaries of the DMK party and several other members have lodged complaints with the Directorate of Vigilance Anti-Corruption on 15.07.2020 and various dates. Since there were no actions on those complaints in any of the Complaints several writ petitions and Petitions under 482 Cr.P.C were filed before this Hon’ble Court and they are pending.
7. I submit that I have lodged two complaints against the Chief Minister and two other ministers on 15/07/2020. And On 29/09/2020 and 31/08/2020, I have received communications from the Directorate of Vigilance and Anti-Corruption informing me that my Complaints were forwarded to the Principal Secretary to Government Public (SC) Department for taking necessary action as per law, which means as per GO MS NO 173, dated 19.12.2018.
8. I submit that the GO (Ms) No. 173 as for as it relates to the public servants other than Group A, B, C, D and All India service, and who are governed under paragraph 4 (v) of the GOs (Public servants who are elected such as Ministers and the Chief Minister) is illegal, Unconstitutional and liable to be struck down.
GROUNDS
a. As Article 164 of the Constitution Of India provides that the Chief Minister and Minister shall hold the office during the pleasure of the Governor and the Governor of the State is to Administer oath to them they are removable from the office only by the Governor and hence as per section 17A OF CORRUPTION ACT, the previous approval shall be taken from the Governor and from no other authority
In State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 the Hon’ble Supreme Court of India was pleased to hold as follows:-
“10. We may add, there is nothing before us to think that any such mistake occurred, nor is there any ground taken in the petition for grant of special leave that the learned Judges proceeded on a mistaken view that the learned counsel had made a concession that there might arise circumstances, under which the Governor in granting sanction to prosecute a minister must act in his own discretion and not on the advice of the Council of Ministers”.
The statement in the judgment that such a concession was made is conclusive and, if we may say so, the concession was rightly made. In the facts and circumstances of the present case, we have no doubt in our mind that when there is to be a prosecution of the Chief Minister, the Governor would, while determining whether sanction for such prosecution should be granted or not under Section 6 of the Prevention of Corruption Act, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.
In M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC 788 the Hon’ble Supreme court of India held as follows
Thus, as rightly pointed out by Mr. Sorabjee, a seven-Judge Bench of this Court has already held that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which the Governor can act in his own discretion. Some of the exceptions are as set out hereinabove. It is, however, clarified that the exceptions mentioned in the judgment are not exhaustive. It is also recognised that the concept of the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. It is recognised that there may be situations where by reason of peril to democracy or democratic principles, an action may be compelled which from its nature is not amenable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers.
19. Article 163 has been extracted above. Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself.
In Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 the Hon’ble Supreme court of India held as follows
“131. Based on the declared position of law by this Court, in the judgments on which reliance was placed by the learned counsel, it was submitted, that where constitutional issues arise, because of an unacceptable and constitutionally impermissible conduct of the Council of Ministers, or in case of a disputation relating to the choice of the Chief Minister, or with reference to the resolution of the House, or on account of the democratic process being undermined, it was open to a Governor to act on his own, without any aid and advice. It was urged that the individual determination of the Governor would extend to issues where propriety requires him to discharge his functions in his own discretion, as for instance, sanction of prosecution of a Chief Minister or a Member of the Council of Ministers.
As the Constitution of India and the Supreme Court of India , mandates that the Governor is the competent authority to give sanction to prosecute a Chief Minister and the Minister obtaining approval under section 17A of the corruption Act is illegal and unconstitutional and hence para 4(v) of the GO MS no 173 is liable to be strike down.
As per the Tamil Nadu business Rules the secretary to Government cannot take his own decision but have to abide by the decision of the cabinet. Hence if the decision to or not to give previous approval to Directorate of Vigilance and Corruption is to be taken by the Principal Secretary Public (SC) Department subject to the approval of the cabinet, whose members are themselves accused of offences , the same will be illegal.
9. It is submitted that present clause 4(v) of the G.O. (Ms) No. 173 dated 19.12.2018 makes the accused themselves to be the judges of their own cause.
10. It is submitted even otherwise a Principal Secretary Public (SC) Department cannot be considered as a person competent to remove a Chief Minister or a Minister from his office and hence he cannot be competent authority as per section 17 A of the PC Act 2018. Hence the present clause 4(v) of the G.O. (Ms) No. 173 dated 19.12.2018 is liable to be struck down.
11. I humbly submit that I am a resident and I personally know the ground reality and sent complaint under prevention of corruption Act, dated 15.07.2020 to respondent. I undertake to pay the cost, if this Hon’ble Court finds that the petition is intended for personal gain or oblique motive and I further submit that I have filed this petition out of own savings, I am a politician, I am a Income tax assessee my PAN No.AETPA0355H, my Aadhar No. 2621 6712 2558, I submit that to my knowledge no public interest litigation arising on the same issue has been filed or pending before this Bench of the Hon’ble High Court of Madras.
It is therefore humbly prayed that this Hon’ble Court may be pleased to dispense with the present original impugned G.O. (Ms) No. 173 dated 19.12.2018 issued by the 2nd respondent and thus render justice.
It is therefore prayed that this Hon’ble Court may be pleased to grant ad interim direction, directing the 2nd and 3rd respondents to forward the complaints dated 15.07.2020 to the Hon’ble Governor of Tamil Nadu under section 17A of the Prevention of Corruption Act as Amendment in 2018 Act, for sanction of prosecution pending disposal of the above writ petition.
It is therefore prayed that this Hon’ble Court may be pleased to grant interim stay of all further proceeding in respect Petn.No.5492/2020/PUB/ dated 31.08.2020 and Petn.No.5493/2020/PUB/ dated 29.09.2020 issued by the 3rd respondent pending disposal of the above writ petition.
It is therefore prayed that this Hon’ble Court may be pleased to issue writ or writs or in particular a Writ of CERTIORARI to call for the record in Government order in respect of impugned clause 4(v) of the G.O. (Ms) No. 173 dated 19.12.2018 issued by the 2nd respondent as ultra virus of Constitution of India and quash the same and pass such as further order or orders as this Hon’ble Court deem fit and proper of the facts and circumstances of the case and thus do render justice.
Solemnly affirmed this affidavit Before me
At Chennai on this 18th day of
December, 2020 and signed
his name in my presence.
Advocate:: Chennai
HIGH COURT :: MADRAS
(Special Original Jurisdiction)
W. P. No. 20069 of 2020
M. Appavu, Ex. MLA
…Petitioner
-Vs-
The Chief Secretary to Government and 3 others.,
…Respondents
DISPENSE WITH PETITION
M/s. V. ARUN [285/92]
P.MUTHUKUMAR [21/2003]
R. KUMARAVEL [2767/07]
E. RAJ THILAK [1726/10]
S. MANU RAJ [143/16]
Counsel for Petitioner
[94440 31987]
