Anti Corruption Movement by its General Secretary, Chennai-93 v. The Government of Tamil Nadu by its Home Secretary, Chennai-22

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.11.2012CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANWP.No.5753/2011WPMP.Nos.1 to 3/2011Anti Corruption Movement by its General Secretary, Chennai-93Petitioner Vs1.The Government of Tamil Nadu by its Home Secretary, Chennai-22.The Government of Tamil Nadu by its Secretary Rural Development and Panchayat Raj Department Secretariat, Chennai-23.The Vigilance Commissioner, Government of Tamil Nadu Secretariat, Chennai-24.The Director of Vigilance and Anti Corruption,P.S.Kumarasamy Raja Salai, Chennai-285.The District Collector, NagapattinamNagapattinam District6.S.Ravi, President, Alalasundaram Panchayat 29, Alalasundaram, Achalpuram (P.O)Sirkali Taluk, Nagapattinam 6091017.The Comptroller Auditor General of IndiaPocket-9, Deen Dayal Upadhyay MargNew Delhi 110124 RespondentsPrayer:- This Writ Petition is filed under Article 226 of theConstitution of India to issue a Writ of Mandamus, (i) directing the4th Respondent to register FIR or cause, by issuing appropriatecircular, registration of FIR by its subordinates, forthwith onreceipt of information in writing from any person, disclosingcommission of cognizable offences punishable under the Prevention ofCorruption Act, 1988 against any Government Servant of any categoryor any Public Servant as mandated under Section 154 of Cr.PC 1973,without expecting any orders from any authority including the 1st https://hcservices.ecourts.gov.in/hcservices/ Respondent therefor and (ii) directing the 5th Respondent to takeimmediate action to remove the 6th Respondent from the Office of thePresident of Alalasundaram Village Panchayat, Kollidam PanchayatUnion, Nagapattinam District, in exercise of power under Section 205of the Tamil Nadu Panchayats Act, 1994.For Petitioner :Mr.N.SubramaniyanFor Respondents :Mrs.Sree Jayanthi, SGP-RR1to5 Mr.Dalit Tiger C.Ponnusamy-R6ORDERARUNA JAGADEESAN, J.This Writ Petition is filed under Article 226 of theConstitution of India as a Probono Publico, praying to issue a Writof Mandamus, (i) directing the 4th Respondent to register FIR orcause, by issuing appropriate circular, registration of FIR by itssubordinates, forthwith on receipt of information in writing fromany person disclosing commission of cognizable offences punishableunder the Prevention of Corruption Act, 1988 against any GovernmentServant of any category or any Public Servant as mandated underSection 154 of Cr.PC 1973, without expecting any orders from anyauthority including the 1st Respondent therefor and (ii) directingthe 5th Respondent to take immediate action to remove the 6thRespondent from the Office of the President of Alalasundaram VillagePanchayat, Kollidam Panchayat Union, Nagapattinam District, inexercise of power under Section 205 of the Tamil Nadu PanchayatsAct, 1994.2. The Petitioner is Anti Corruption Movement, Chennai-93represented by its General Secretary. The averments as stated in theaffidavit filed in support of this Writ Petition are that oneA.Elayaraja, who is one of the members of the PetitionerAssociation, has informed the Petitioner about the corrupt practicescommitted by the 6th Respondent, who is the President of theAlalasundaram Panchayat, in connivance with the Officials in theexecution of various schemes in the said Panchayat. The said memberhas sought information on various aspects on various schemesexecuted by the 6th Respondent and made complaints about the corruptpractices of the 6th Respondent to various authorities to takeaction, but however, no action was taken by the authorities and the6th Respondent is continuing these illegalities till date.3. In the affidavit, it is further stated that thePetitioner took up the issue and made representations to the 5thRespondent, District Collector, Nagapattinam District to take actionto remove the 6th Respondent from his post and has narrated a fewinstances and alleged corrupt practices by the 6th Respondent asunder:- https://hcservices.ecourts.gov.in/hcservices/ a)Public funds were looted by the 6th Respondent byfalsifying "Nominal Muster Roll" (NMR), by forging theattendance of the citizens.b)Public funds were looted in the de-silting work ofAlalasundaram Vaaikkaal under the National RuralEmployment Guarantee Act (hereinafter referred to asNREGA) Scheme.c)Abuse of power in the implementation of Indira GandhiMemorial Group Houses Scheme.d)Demand acceptance of bribe for allotting housesconstructed at Alalasundaram Panchayat under the IndiraGandhi Memorial Group Houses Scheme.4. It is further averred in the affidavit that thePetitioner has given a representation on 16.11.2009, complainingabout the illegalities and corrupt practices committed by the 6thRespondent to the 3rd Respondent herein, who in turn, forwarded thesame to the 2nd Respondent and thereafter, no action was taken. Thereminder sent by the Petitioner on 15.4.2010 and again on 20.5.2010to the Respondents 2 to 3 and 5 proved futile. The 5th Respondenthas failed to remove the 6th Respondent from his Post, invokingpowers under Section 205 of the Tamil Nadu Panchayats Act, 1994, butonly caused a field inspection and found a loss of Rs.6,88,868/- byway of illegal expenditure made by the 6th Respondent andconsequently, directed the 6th Respondent to remit the said amount,but the 6th Respondent had failed to remit the amount till19.11.2010. The Respondents 2 to 3 and 5 have failed to performtheir basic duties cast on them. The Petitioner has further statedthat the 2nd Respondent is not interested to take any action in thisregard and therefore, the Petitioner has approached this court byfiling this Writ Petition for appropriate orders.5. In the counter filed by the 4th Respondent, theVigilance Commissioner, Chennai, it is stated that the petitiondated 03.12.2010 submitted by the Petitioner has been forwarded tothe Chief Secretary to Government on 7.1.2011 vide LetterNo.30511/PUB/2010/TR as per the instructions issued in GovernmentLetter No.58124/N/2000-2.6. In the counter filed by the 5th Respondent, theDirector of Vigilance and Anti Corruption, Chennai, it is deniedthat no action has been taken against the 6th Respondent on theallegations made by the Petitioner. It is stated that in fact, theAssistant Director of Panchayats has inspected the accounts of theAlalasundaram Panchayat and detected so many irregularities. It isfurther stated that there were irregularities in maintaining theaccounts and thus, there was a financial loss caused to the saidPanchayat to the tune of Rs.6,88,848/- as detailed under:- https://hcservices.ecourts.gov.in/hcservices/ Pursuant to that, according to this Respondent, necessary ordershave also been issued by the 5th Respondent, directing the 6thRespondent to remit the loss of Rs.6,88,848/- vide RC.No.2016/A3/AD(P) dated 19.7.2010. Further, on a representation by the 6thRespondent, the Assistant Director (Audit) has conducted a specialaudit and found that there was actual excess expenditure ofRs.5,02,589/-. According to the provisions contained under Sections193 and 242 sub section 2(XVII) of the Tamil Nadu Panchayat Act,1994 and Rule 3(i)(a), a surcharge notice was issued by the 5thRespondent vide Rc.No.17/A2/11/Audit dated 25.2.2011 to the 6thRespondent to remit the surcharge amount and follow up action hasbeen taken, which is under progress. It is further stated thatenquiry has been conducted regarding the allegations in handling ofNMRs under MGNREG Scheme and the selection of beneficiaries underIAY, etc and final order is yet to be passed. It is further statedthat huge money has been allotted under NREGA Scheme and detailedguidelines and procedures have been issued for implementation of thescheme. The expenditure made under the above said scheme is alsosubjected to annual audit, besides special audit. Whenever there isany complaint regarding the irregularities, action is being taken bythe competent authorities, who are executing the work andsupervising the work. It is also pointed out that the 6thRespondent can be removed from holding the post of President ofVillage Panchayat only after observing the formalities laid downunder Section 205 of the Tamil Nadu Panchayat Act, 1994. It isfurther stated that in regard to the loss of revenue due torepetition of payment under NREGA, a special enquiry has beenconducted by the Assistant Project Officer and the report is alsounder the examination of the 5th Respondent for final orders andafter taking final decision, appropriate action will be takenagainst the 6th Respondent. 7. It is also brought to the notice of this court that aFirst Information Report has been registered against the 6thRespondent on the complaint given by one Ratna Mala, BlockS.No.1441002Purchase of spares CFL fittings555003261804Excess sitting Fees to the President500511256Excess expenditure to over head tank1186537Excess expenditure for street light maintenance2298908Excess expenditure for hand pump maintenance1282109Purchase of street light materials1990010Purchase of materials for over head tank1991011Hand pump materials purchase2499012CFL fitting purchase17890Total686848Details of Lapses/Commissions/Loss/ Excess ExpenditureAmount of LossPurchase of materials spare parts without proper quotation and resolution of the PanchayatConstruction of revetments at Koollakulak TalukExcess sitting fees to the members of the Panchayat https://hcservices.ecourts.gov.in/hcservices/ Development Officer, Kollidam, in Cr.No.244/2012 for the offenceunder Section 406 of IPC on 1.6.2012 on the file of the A.K.ChatramPolice Station. 8. The facts and circumstances of the present case doindicate that it is of utmost public importance and theinvestigation into every accusation made against the 6th Respondentmust be conducted and completed expeditiously. It is needless topoint that it is the duty of the 4th Respondent to expeditiouslyinvestigate into every aspect and when on complaint, private orotherwise, the grievance is voiced before it regarding corruptionagainst the public servant, the 4th Respondent shall do the needfultaking all necessary steps to investigate the case, file complaint,obtain sanction and thereafter, file the charge sheet. It isneedless to mention that things should be done within the statutorypowers of the investigating agency acting under the Prevention ofCorruption Act, 1988, if prima facie offence under the Act isdeducted.9. The very prayer of the petitioner, to register FIRagainst any Government Servant of any category or any publicservant, when a complaint of cognizable offence is made againstthem, and proceed to prosecute them, without expecting any ordersfrom any authority, is in the nature of nullifying the procedure ofobtaining 'sanction' to prosecute public authorities, provided forunder various laws of the land in force.10. Admittedly, the sixth respondent, against whomallegations have been made and even a criminal case came to beregistered, is the President of Alalasundaram Panchayat. Section 230of the Tamil Nadu Panchayats Act, mandates obtaining 'sanction' fromthe authority concerned, for prosecuting the President or theExeucutive Authority etc. of a Panchayat. For better understanding,we shall extract hereunder the said Section:"230. Sanction of prosecution.- (1) When the Presidentor the Executive Authority or the Chairman or ViceChairman of a Panchayat Union Council or DistrictPanchayat or the Commissioner or the Secretary of anymember is accused of any offence alleged to have beencommitted by him while acting or purporting to act inthe discharge of his official duty, no Court shall takecognizance of such offence except with the previoussanction of the Government.(2) When according previous sanction under sub-section(1), it shall be open to the Government to direct byorder that the President, Executive Authority,Chairman, Vice Chairman or Commissioner or theSecretary, as the case may be, shall not discharge hisduties as such until the disposal of the case."11. The language of this Section is clear and unambiguous, https://hcservices.ecourts.gov.in/hcservices/ mandating 'sanction' to prosecute the President and otherauthorities concerned with the panchayat. Section 19 of thePrevention of Corruption Act, inter alia, provides for previoussanction for prosecution and such sanction is necessary if a personis employed in connection with the affairs of the Union/State.Section 197 of the Criminal Procedure Code is the correspondingprovision for previous sanction of a public servant for prosecutionof offences in a criminal trial. When there are authoritiescompetent to remove public servants and to grant sanction for theirprosecution, the requirement of such sanction precludes Courts fromtaking cognizance of the offences, in the absence of such sanctionand in fact, as could be seen from the above Section 230(1) of theTamil Nadu Panchayats Act, there is complete bar on the Court totake cognizance of such offence, in the absence of previous sanctionof the Government.12. While such being the well established mandate of lawof the land, the petitioner, under the garb of this probono publico,is trying to declare all such established legal procedure a nullity,which cannot, at any stretch of imagination, be permitted.13. With regard to the prayer of the petitioner that thesixth respondent shall be removed by the District Collector, inexercise of his powers under Section 205 of the Tamil NaduPanchayats Act, 1994, it is to be mentioned that since allegationsof misuse of power and office are made against the sixth respondent,and even in the counter affidavit, the District collector hasadmitted that the authorities have found irregularities and loss ofmoney to the Government, it is for the 5th respondent/DistrictCollector to proceed against the 6th respondent in the manner knownto law, of course, by strictly adhering to the avowed principles ofaudi alteram partem and the detailed procedure enumerated underSection 205 of the Tamil Nadu Panchayats Act. 14. Coming to the case on hand, the averments made in thecounter affidavit filed by the 5th Respondent clearly show that the5th Respondent has already taken action regarding the irregularitiesand lapses on the part of the 6th Respondent pointed out by thePetitioner and the investigation is also pending in the criminalcase registered against the 6th Respondent. If a person isaggrieved that proper investigation has not been made by theOfficer of the Police Station concerned, there are enough safeguardsin the Code of Criminal Procedure to protect the interest of thecomplainant and it is not as if the Petitioner is without anyremedy. In case the Petitioner is aggrieved by the inaction of thePolice concerned or the 5th Respondent, it would be open to them tofile appropriate proceedings to redress their grievance beforeappropriate legal forum. https://hcservices.ecourts.gov.in/hcservices/ For the aforesaid reasons, we are of the view that thePetitioner has not made out a case for issue of a Writ of Mandamusas prayed for in this Writ Petition and as such, this Writ Petitionis liable to be dismissed and accordingly, it is dismissed with theabove observations. No costs. Consequently, the connected MPs areclosed. Sd/- Deputy.Registrar.(J) /true copy/ Sub Asst.Registrar.Srcm To:1.The Home Secretary, The Government of Tamil Nadu, Chennai-22.The Secretary to Government of Tamil Nadu Rural Development and Panchayat Raj Department, Secretariat,Chennai-23.The Vigilance Commissioner, Government of Tamil Nadu Secretariat, Chennai-24.The Director of Vigilance and Anti Corruption, R.S. Kumarasamy Raja Salai,Chennai-285.The District Collector, NagapattinamNagapattinam District6.The Comptroller and Auditor General of India, Pocket-9, Deen DayalUpadhyay Marg, New Delhi 1101241 cc to Mr.N. Subramaniyan, Advocate, Sr. 697031 cc to Mr. Dalit Tiger C. Ponnusamy, Advocate, Sr. 701521 cc to Government Pleader, Sr. 69846WP.No.5753/2011TMN (CO)kk 29/11