W.P.(MD)No.7833 of 2020 and W.M.P.(MD)No.7313 of 2020 B.PUGALENDHI, J. this Court deems necessary to call for the particulars on the pendency of the complaints at the stage of approval as required under Section 17A of the Prevention of Corruption Act, and under Section 19 of the said Act as well as under Section 197 Cr.P.C by impleading the Vigilance Commissioner / Chief Secretary of the State. However, Mr.P.H.Aravinth Pandian, learned Additional Advocate General submitted
W.P.(MD)No.7833 of 2020 and W.M.P.(MD)No.7313 of 2020
This writ petition is filed for a writ of mandamus, alleging inaction on the part of the respondents 1 and 2 on the complaint of the writ petitioner dated 19.11.2019.
2. When the matter was taken up for hearing, it was represented on behalf of the respondents 1 and 2 that this complaint dated 19.12.2019 was duly forwarded to the Head of the Department, namely, 5th respondent herein on 02.12.2019, for approval for enquiry as required under Section 17A of the Prevention of Corruption Act as amended in the year 2018.
3. Since the complaint forwarded by the Vigilance and Anticorruption Department has not been acted upon within the time limit as per the proviso, this Court suo-motu impleaded the Secretary, Collegiate Education Chennai, as a party 5th respondent to this proceedings by order dated 22.07.2020.
4. On the next date of hearing, i.e., on 04.08.2020, a representation was made on behalf of the 5th respondent that the 5th respondent has appointed an
I.A.S. officer to enquire into the allegations in the complaint. Not satisfied with the said reply, this Court directed the 5th respondent to file a status report and adjourned the matter to 17.08.2020.
5. On 17.08.2020, the Joint Secretary, Higher Education Department has filed a status report with bereft of details without even referring to the date of which Mr.Vivekanandhan, I.A.S., was requested to look into the allegations. By expressing dissatisfaction with the status report filed on behalf of the 5th respondent, and also by observing the consequences on the delay in granting approval, this Court raised certain issues and also directed the 5th respondent to file a better affidavit.
6. Pursuant to this order dated 17.08.2020, a status report has been filed by the Joint Secretary to Government on behalf of the 5th respondent by referring the communication received from the first respondent / Director of Vigilance and Anticorruption in petition No.
12756/2019/EDN/CC-HQ dated 02.12.2019 and submitted that as per their understanding, the complaint was forwarded only for the departmental action and as a follow up action, the Director of Collegiate Education was requested to send his remarks on 24.07.2020 and a reply was also received on 30.07.2020 stating that he has recommended for a detailed enquiry. Accordingly, 5th respondent has also sent a letter to the Director of Vigilance and Anticorruption Department on 21.08.2020, to enquire into the matter and initiate necessary action.
7. Though this Court has expressed that it is not satisfied the manner in which, the earlier status report has been filed without even referring the date on which, Mr.Vivekanandhan, I.A.S., was requested to look into the complaint, this Court has also raised certain issues, why not the scope of the enquiry be extended with the official, who have deliberately delayed the process of investigation and adjourned the matter to 25.08.2020.
8. As a response to the queries raised by this Court on 17.08.2020, a status report is filed on behalf of the 5th respondent, once again without referring the date on which, Mr.Vivekandhan, I.A.S., was requested to
look into the issue. Further 5th respondent has taken a shelter that she was posted on this portfolio recently and after she took charge, she has also referred the complaint to Mr.Vivekanandhan, I.A.S.,. The status report does not contain anything on the queries raised by this Court. But the 5th respondent has stated that their enquiry reveals that there is prima facie evidence in misconduct of the recruitment by the Devanga Arts College and the letter was also sent to the 1st respondent/ Director of Vigilance and Anticorruption on 21.08.2020 to enquire into the matter and to initiate necessary action.
9. As an explanation to this affidavit filed on behalf of the 5th respondent, Mr.Aravinth Pandiyan, learned Additional Advocate General represents that the request of the Director of Vigilance and Anticorruption in petition No.12756/2019/EDN/CC-HQ dated 02.12.2019 is only for a departmental enquiry and not for an approval as contemplated under Section 17A of the Prevention of Corruption Act.
10. The learned Additional Advocate General has also circulated a copy of the petition No. 12756/2019/EDN/CC-HQ dated 02.12.2019, which reads as
The Director, DVAC, Chennai -16.
The Principal Secretary to Government, Collegiate Education,
Secretariat, Chennai -9.
DVAC-Petitions received in this
Directorate – Reg
1. Petition dated 19.11.2019 from Tr.S.Rajasekaran,S/O.Savundaiya Chettiar, No. 21, Savundamman Kovil Street, Telephone Road, Aruppukottai, Virudhunagar District.
2. Prevention of Corruption (Amendment) Act, 1988 as amended in 2018 (Central Act 16 of 2018), notified in the Gazette of India Extraordinary, dated 26.07.2018.
3.G.O.(Ms).No.173, P&AR(N) Department, dated 19.12.2018.
The above referred petition received in this Directorate on 22.11.2019 was perused.
2.The allegations in the petition are levelled against the following officials:-
1. Tmt.Charumathi, Former Director of Collegiate Education, Chennai.
2. Tr.Koodalingam,Ex.Joint Director of Collegiate Education, Chennai.
3. Tr.Ambalavanan,Ex.Joint Director of
Collegiate Education, Chennai.
Collegiate Education, Joint
Chennai. Director of
5.Tr.Ramasamy R. Secretary, Aruppukottai Devanga Arts College, Virudhunagar District.
3. Factual verification was done as per the guidelines given in the reference 3rd cited. The content of the petition is general in nature.
4. Hence, this petition in original is sent herewith for necessary action at your end.
5. The Directorate has not caused any enquiry into the contents of the above petition.
For Director, E.Prithivirjan]
Additional Superintendent of Police, Headquarters,
Vigilance and Anticorruption, Chennai -16.”
11. Since the 5th respondent has taken a specific stand that the letter dated 02.12.2019 of the 1st respondent is not under Section 17A of the Prevention of the Corruption Act and it is only for a departmental action, this Court deems it fit to direct the
1st respondent to file a report on the stand taken by the 5th respondent. Further, the 1st respondent shall also meet out the following queries in his report:
(i) If the complaint in No. 12756/2019/EDN/CC-HQ, dated 02.12.2019 was sent only for recommending the departmental proceedings, why the reference has been made to Prevention of Corruption (Amendment) Act, 1988 as amended in 2018 (Central Act 16 of 2018), notified in the Gazette of India Extraordinary, dated 26.07.2018 and The Government Order in G.O.(Ms).No.173, P&AR(N) Department, dated 19.12.2018, wherein the Government has issued the procedures and guidelines to be followed on the complaint /petitions received with allegation of corruption as against public servants pursuant to introduction of Section 17A(1) in the Prevention of Corruption Act, 1988 as inserted by Central Act, 16 of 2018.
(ii) when the complaint and the materials enclosed prima facie disclose the
offence committed in the appointments in the said College, why the Vigilance and Anti Corruption Department has chosen to refer the matter for departmental proceedings, instead of an enquiry or investigation on the complaint?
(iii) The number of cases registered by the Vigilance and Anti Corruption Department in Tamil Nadu in the last five years, year
wise details and the time taken for getting
approval as well as sanction on those cases
and its stages.
(iv) The yardstick adopted by the
Vigilance and Anti Corruption Department in
referring a complaint for departmental
12. The 5th respondent as well as the 1st respondent shall also produce the files pertaining to the proceedings No. Petition No.12756/2019/EDN/CC-HQ dated 02.12.2019.
13. In this case, the complainant has made it clear that the Principal of the College himself has come forward and stated that the appointments have been made in a fraudulent manner and that apart, the complainant has also mentioned that he has obtained certain information under Right to Information Act that no call letters were despatched from the college to any of the candidates applied for the post. When these two materials itself make out a prima facie case that the appointments were not made in a proper manner, this Court is unable to understand, how the Vigilance and Anti Corruption Department has taken a decision to refer this complaint for departmental enquiry?
14. The allegation in the complaint itself is that a Lecturer and two others were appointed in a college in a fraudulent manner, whether it is a minority institution or not, it is an aided Institution and if this is how, the Lecturers are appointed, without considering the institution, it is unable to understand stand taken by the 1st respondent that it is not even a fit case for an enquiry in the Vigilance Department. Moreover, it is also brought to the knowledge of this Court that one of the Lecturers from this institution is facing trial for the
charges that she made an attempt to exploit the girl students of the College.
15. This Court is not satisfied with the response of the 5th respondent as well as the 1st respondent to this writ petition. It may not be correct to state that this petition No.12756/2019/EDN/CC-HQ dated 02.12.2019 is referred only for a departmental proceedings, since this petition has been forwarded as per G.O.Ms.No.173 Personnel and Administrative Reforms (N) Department, dated 19.12.2018 and by referring the Prevention of Corruption (Amendment) Act, 1988 as amended in 2018 (Central Act 16 of 2018), notified in the Gazette of India Extraordinary, dated 26.07.2018 a clever stand has been taken as if, the complaint was forwarded only for a departmental enquiry without even considering how it would reflect upon the Department.
16. The respondents are taking an U-turn in order to avoid the queries made by this Court for a extended enquiry on the Departmental officials on the deliberate delay made in the process of granting approval. In fact, this respondent, in his earlier status report filed on 17.08.2020 has not taken this stand and the reading of
the affidavit would disclose that the understanding of the Department on the petition No. 12756/2019/END/CC-HQ, dated 02.12.2019 is only for an approval as required under Section 17A of the Prevention of Corruption Act. This is how the entire machinery is functioning the delay in the process of investigation on the offences under the Prevention of Corruption Act.
17. The corruption is a menace to the society. The Prevention of Corruption Act is enacted with an object to eradicate the corruption from the society. The Prevention of Corruption Act, 1947 was amended in the year 1964, based on the recommendation of the Santhanam Committee. The amended Act, 2018 is introduced with certain modification to the Act, so as to make the provisions more effective in combating the corruption among public servants. The success of the enactment against the evil of corruption, depends upon the performance of this legislature. It is the duty of the Government to ensure good and transparent governance. The principle of honesty, integrity and devotion to duty is slowly vanishing from the public servants. Mostly because of the delay in the process of investigation and trial. Any delay either in the investigation or in the
trial would ultimately affect the cause for prosecution. The golden rule to avoid delay is projected in the maxim, as delayed justice is denied justice.
18. In order to expedite the proceedings, certain provisions were also made in the new amendment for day to day trial of the case and prohibitory provisions with regard to the grant of stay, exercise of power of revision on the interlocutory orders. Even after this march of law, the process of investigation, trial and the appeals are delayed successfully. Particularly, in the cases under the Prevention of Corruption Act. For every case under the Prevention of Corruption Act, it requires
20 – 25 years for a final conclusion and the accused are successfully dragging the proceedings till the charges get abated. The delay in the process of the investigation and the trial in the Prevention of Corruption Act cases, in fact, encourages the corruption and the corruption has extended its tentacles everywhere in the Administration and it is also extended to the Society. A corruption free society is the need of the hour.
19. This provision under Section 17A is made with an object to protect the innocent persons from vexatious
complaints. But, somehow the provisions are used only for delaying the process. This delay in the process of investigation and the trial occurs mostly in the cases registered under the Prevention of Corruption Act. Even in this case, after this Court has taken cognizance of this issue and after detailed orders have been passed, contemplating criminal prosecution as against the officials, who are delaying the process of investigation, 5th respondent has now filed the report that there is prima facie evidence of misconduct in the process of recruitment by the Devanga Arts College. The letter was also addressed to the 1st respondent on 21.08.2020 to enquire into the matter and initiate necessary action. But with this prima facie materials, this complaint is kept pending for the past 8 months.
20.A mere reading of the complaint and the documents enclosed along with the complaint make out a prima facie case of misconduct in the process of recruitment in the aided College and to find out this misconduct, the authorities have taken nearly 8 months. Even in the letter of the 1st respondent, dated 02.12.2019, in paragraph No.3, it is mentioned that
factual verification was done as per the guidelines given
in G.O.Ms.No.173, Personnel and Administrative Reforms
(N) Department, dated 19.12.2018 and the Director has arrived at a conclusion that the content of the complaint is only general in nature and therefore, forwarded the complaint for departmental action by the 5th respondent and this obviously exposes the manner in which, the 1st respondent is functioning. At least after 8 months, the 5th respondent has taken a stand that a prima facie evidence of misconduct is available in the complaint.
21. This is how the complaints are misdirected, resultantly, the offenders are escaping from the clutches of law. Even at the stage of preliminary enquiry, the Department requires eight months and a considerable time for investigation at the stage of sanction for prosecution under Section 19 of the Prevention of Corruption Act, is also inevitable. In the meantime, the offenders are getting sufficient time to destroy and tamper the evidence and even if anybody withstands the same, they would be demoralised.
22. Considering the delay in the process of sanction, three judges Bench of the Hon’ble Apex Court in
the case of Vineet Narain v. Union of India, 1998 SCC
(Cri) 307, issued certain directions to the Central Bureau of Investigation and Central Vigilance Commission. In one of directions, it was made clear that the time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, an additional time of one month was allowed, where consultation is required with the learned Attorney General or any other Law officer in the Attorney General’s Office. Despite the directions issued by the Hon’ble Apex Court, the process of sanction are not completed within the time limit of three months. It is a difficult process even for an agency like Vigilance and Anticorruption Department, while so, how a common man can get sanction for prosecution as against the corrupt officials.
23.A criminal revision case is also posted today, wherein, a private complaint filed by the revision petitioner was dismissed for want of sanction. The case of the revision petitioner is that his wife, who was admitted in the Government Hospital at Theni, was not properly treated for want of money and in that process, his wife died on 15.03.2008 and with great difficulty, he obtained the case sheets on the treatment provided at
Theni Government Hospital. But three different reports were furnished with certain manipulation and with this allegation, he filed a private complaint before the learned Judicial Magistrate, Andipatti in the year 2011, after collecting the required materials under the Right to Information Act. This complaint was dismissed by the learned Judicial Magistrate on 27.05.2011 for want of sanction and this revision petition filed in the year 2016 is also lying before this Court for the past four years. For the occurrence said to have taken place in the year 2008, the revision petitioner is waiting for justice for the 12 long years and it is not known how a private individual can obtain a sanction within the stipulated time, when it is not feasible for an agency like, Vigilance and Anticorruption Department.
24. In this context, this Court deems necessary to call for the particulars on the pendency of the complaints at the stage of approval as required under Section 17A of the Prevention of Corruption Act, and under Section 19 of the said Act as well as under Section
197 Cr.P.C by impleading the Vigilance Commissioner / Chief Secretary of the State. However, Mr.P.H.Aravinth
Pandian, learned Additional Advocate General submitted
that for ascertaining these details, the Chief Secretary need not be added as a party respondent to this proceedings and undertook to furnish the details as required for just adjudication of this petition. Since the undertaking has come from a top Law Officer of the State, this Court is not impleading the Chief Secretary/Vigilance Commissioner as party respondent to this proceedings and this Court requires the following details:
(i) The existing mechanism adopted for grant of sanction under Section 197 Cr.P.C. and under Section 19 of the Prevention of Corruption Act? and the time limit prescribed for the same.
(ii) The procedure available for a private individual to obtain sanction as required under Section 197 Cr.P.C., and under Section 19 of the Prevention of Corruption Act, for lodging private complaint as against the erring officials and how many private individual has sought for sanction from the Government and what is the result and stage of such requests?
(iii) How many cases are pending for sanction under Section 197 Cr.P.C., and under Section 19 of the Prevention of Corruption Act in this State as on date and what is the time duration taken by the officials concerned for granting such sanctions?
(iv) The existing monitoring mechanism by the Vigilance Commissionerate to ensure the process of sanction and the approval for enquiry, whether the same are processed in a time bound manner.
25. Post the matter on 08.09.2020, for filing the report / reply by the respective respondents to the queries raised above.
W.P.(MD)No.7833 of 2020 and W.M.P.(MD)No.7313 of 2020