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AFR

Reserve Judgment

Court No. - 8

Case :- WRIT - A No. - 4054 of 2022

Petitioner :- Deepak Yadav

Respondent :- State Of U.P. Thru. Addl. Chief Secry. Dept. Of Home

Confidential And Vigilance Lko. And 2 Others

Counsel for Petitioner :- Ghaus Beg,Lalta Prasad Misra

Counsel for Respondent :- C.S.C.

Hon'ble Alok Mathur,J.

1. Heard Dr. Lalta Prasad Misra as well as Sri Ghaus Beg, learned

counsel for the petitioner as well as Sri Rahul Shukla, learned Chief

Standing Counsel appearing for the respondents.

2. By means of present writ petition the petitioner has assailed order

passed by the State Government dated 27.04.2022, whereby an open

inquiry is sought to be conducted by the Vigilance Establishment on

the ground that respondents have already conducted an inquiry with

regard to same allegations and no material was found against the

petitioner and hence the proceedings were concluded in favour of the

petitioner and by means of impugned order the petitioner is sought to

be victimised and harassed yet again by holding vigilance inquiry.

3. Brief facts of the case are that the petitioner was initially appointed

on the ex-cadre post of Assistant Director, City Cleansing Department,

Nagar Malapalika, Kanour in the year 1991. Subsequently, petitioner's

services were absorbed in the vacant post of Assistant Engineer (E/M)

inthe cadre of Centralized Services created under Rule 3 of the U.P.

Palika (Centralized) Service Rules, 1966 and was further confirmed

by order dated 11.05.1994. He was then promoted to the post of Chief

Engineer (E/M) in 2016.

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4. A complaint dated 25.04.2017, was made against the petitioner by

one Vinod Kumar Pandey, Advocate alleging that petitioner while

discharging his duties as Chief Engineer in Nagar Nigam, Lucknow

had amassed huge property by corrupt means. On the basis of

aforesaid complaint an inquiry was initiated by the State Government

by order dated 15.11.2017. The inquiry was conducted by Economic

Offences Wing Organization, Lucknow. In the said inquiry written and

oral evidences were led and inquiry report was submitted on

14.06.2019. In the said inquiry report allegations against the petitioner

could not be proved. The inquiry report was duly forwarded by the

Additional Director General of Police, Economic Offences who vide

letter dated 21.06.2019, informed the State Government that

allegations regarding financial irregularities and financial

embezzlement has not been proved but, for some other minor

misconduct recommended for initiation of departmental proceedings

against the petitioner.

5. Accordingly, departmental proceedings were initiated against the

petitioner pursuant to which a show cause notice dated 09.10.2019

was given seeking his response. The State Government considering

reply of the petitioner dated 27.02.2020 and 13.03.2020, passed an

order dated 13.06.2020, whereby minor penalty of "censure entry"

was imposed against the petitioner.

6. It is submitted by learned counsel for the petitioner that yet another

complaint dated 09.08.2019 has been made by one Dr. S.K. Sharma,

Advocate to the Chief Minister, U.P. levelling similar allegations of

accumulating assets disproportionate to petitioner's known source of

income. The said complaint has resulted in passing of the impugned

order which has been challenged by the petitioner in the present writ

petition.

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7. The complaint made by Dr. S.K. Sharma, Advocate resulted in an

inquiry by the Vigilance Establishment, Lucknow. After conducting

the inquiry, a report was submitted on 03rd June, 2021, which is

marked as "confidential" document and has been annexed alongwith

the writ petition. In the inquiry report Superintendent of Police, U.P.

Vigilance Establishment records that a complaint was received from

Dr. S.K. Sharma, Advocate alleging that the petitioner has amassed

huge wealth and property for himself as well as in the name of his

relatives to the tune of nearly Rs.500 Crores.

8. During the inquiry it was found that income of the petitioner from

all known sources was around Rs.1,06,67,598/- and he has acquired

certain properties in Nainital and also that he has certain LIC policies.

The income and assets of his wife were also taken into account and

considered that petitioner has received remittances from his relatives

living in UK, which has been shown to have been gifted to him.

9. Inquiry was concluded in his favour stating that the petitioner has

been able to demonstrate that assets, commensurate with his income,

but the inquiry officer only found that he had not informed the

authorities with regard to acquisition of the properties for which

further disciplinary proceedings were recommended.

10. Dr. L.P. Mishra, learned counsel for the petitioner while assailing

the impugned order dated 27.04.2022, whereby open vigilance inquiry

has been directed to be held against the petitioner, has submitted that

present inquiry is being initiated on the basis of certain baseless and

unverified evidences which are contrary to the Government Orders

issued in this regard which provide that it is mandatory that

allegations have to be supported by an affidavit. He submits that the

Government Order dated 9th May, 1997, states that looking into the

large number of complaints received with regard to higher officials

mainly category I, it is provided that whenever a complaint is

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received, from a MP/MLA or any other person holding high post, then

firstly, it should be verified from the person making such complaint

that he had infact made the said complaint. In case complaint is

received from any other person then the complainant should be asked

to submit his complaint on affidavit. Similar provisions were

reiterated in the Government Order dated 1st August, 1997.

11. The second ground of challenge is that once an inquiry into the

allegations with regard to accumulation of disproportionate assets has

already been conducted and punishment of "censure" entry has been

awarded, then it is not open for the Government to conduct another

inquiry on the same set of facts. Counsel for the petitioner submits

that second inquiry in the given circumstances would be

impermissible and contrary to law and amounts to "double jeopardy"

inasmuch a person can be punished only once for his misconduct and

cannot be repeatedly punished for the same misconduct again and

again as the same would be violative of Articles 14 and 21 of the

Constitution of India.

12. Sri Rahul Shukla, learned Additional Chief Standing Counsel

appearing for the respondents while opposing the writ petition has

submitted that there are very serious allegations against the petitioner,

who was holding post of Chief Engineer, Nagar Nigam, Lucknow. He

submits that the petitioner was awarded punishment of "censure" entry

on the ground that, on 02.04.2013 and 18.06.2013, petitioner had

purchased fire arms and acquisition of the said fire arms was never

informed to the State Government and for the said negligence a show

cause notice was given to him pursuant to which "censure" entry was

given to him only on the ground that he had informed the State

Government about the aforesaid acquisition with delay. He further

submits that punishment of 'censure' entry was not awarded to the

petitioner for acquiring any of the properties for which earlier matter

was inquired by the Economic Offence Wing, and therefore submitted

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that both the allegations are distinct and different and hence

vehemently opposed the arguments of the petitioner that he has been

already punished for the same allegations.

13. Learned Additional Chief Standing Counsel has drawn attention of

this Court to the confidential letter dated 03.06.2021 written by

Superintendent of Police, U.P. Vigilance Establishment stating that on

the basis of complaint dated 09.08.2019, made by one Dr. S.K.

Sharma, Advocate, property of nearly Rs.500/- Crores have been

acquired by the petitioner. The Vigilance Establishment was asked to

enquire into the said matter by means of order dated 20.08.2020.

14. In pursuance to the aforesaid directions supplementary

Intelligence Report was submitted to the State Government on

05.05.2022.

15. It has been further stated that details of the complaint were got

verified from the complainant who submitted all the details to the

Vigilance Establishment including bank details of Smt. Shalini Yadav,

wife of petitioner. Cognizance has also been taken to a news report

published in the media with regard to certain allegations with regard

to the petitioner having accumulated assets more than his known

sources of income.

16. The Vigilance Establishment conducted inquiry and submitted its

report to the State Government on 03.06.2021. It has been informed

that the State Government did not agree with the previous open

Vigilance Inquiry and it has also been stated that in the earlier

Vigilance Inquiry only 10 properties were subjected to scrutiny, but

according to fresh complaint the petitioner is alleged to have amassed

14 properties which are subject matter of present inquiry.

17. The learned Additional Chief Standing Counsel has submitted

categorically that the petitioner has not been punished in pursuance to

the first inquiry conducted by the Economic Offences Vigilance

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Department for amassing disproportionate assets, but had been

awarded only 'censure' entry for tendering delayed information to the

State Government with regard to acquisition of fire arm by the

petitioner. It is stated that the issue pertaining to the allegations of

corruption and also for accumulating disproportionate assets no

formal inquiry or proceedings have been initiated against the

petitioner, and it is only at the stage of preliminary inquiry.

18. It has further been submitted that on 28.09.2021, the Government

being of the view that earlier inquiries have not been conducted in

proper manner has rejected all the earlier inquiry reports and all the

previous inquiry officers have been replaced with the direction to

again inquire into the allegations against the petitioner and the inquiry

need to be conducted by an officer not below the rank of Inspector

General of Police.

19. It is in the aforesaid facts of the case that prayer has been made for

quashing the impugned order whereby Vigilance Establishment has

been asked to conduct an open inquiry against the petitioner. The said

Vigilance inquiry has been assailed firstly on the ground that same has

been initiated on the basis of baseless and unverified allegations,

contrary to the provisions of Government Orders dated 9th May, 1997

and 1st August, 1997. In the first Government Order all the Principal

Secretaries have been informed that in case a complaint has been

made by officials occupying high positions, then it should be verified

whether they had been sent by the complainant and in all the other

matters the complainant should be asked to submit an affidavit, in

support of his allegations leveled against the delinquent employee.

20. It is urged that the aforesaid provisions are mandatory and present

inquiry being conducted contrary to the aforesaid Government Orders

is a nullity hence deserves to be set aside.

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21. Perusal of the complaints made against the petitioner reveal that

while holding post of Chief Engineer of Nagar Nigam, Lucknow he is

alleged to have purchased several properties and also created assets in

his own name and that in the name of his relatives which cannot be

explained from his known sources of income and hence there is

presumption that he is engaged in corrupt practices. When ever there

are allegations particularly relating to corruption or defalcation of

funds from State exchequer, it is primary duty of the State

Government to take immediate steps and hold preliminary inquiry to

verify the veracity of the allegations, and stop any further such

activity.

22. This Court is of the considered view that every rupee which is

amassed by any person holding public office, through corrupt means

infact is that money which should have been found its place in the

State exchequer rather than pocketed in illegal, unjustified manner

resulting in unjust enrichment of such public officials.

23. It is due to the fact that government functions as a trustee of the

public funds and it is duty bound to protect and preserve the public

money and undoubtedly prevent it from same finding its way into the

hands of unscrupulous public servant.

24. In the present case, on the basis of one such complaint inquiry was

conducted by the Economic Offences Wing where the report was

submitted to the State Government on 18.06.2019, exonerating the

petitioner where they inquired into ten properties acquired by the

petitioner. In the present case the inquiry has been initiated pursuant to

the complaint made by one Dr. S.K. Sharma, Advocate. The State

Government proceeded to verify the contents of the complaints. The

complainant provided details of his complaint and also provided

material on the basis of which said complaint was made.

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25. Dr. L.P. Mishra, lerned counsel for the petitioner has submitted

that unless the complaint is given on affidavit, the State Government

cannot initiate any inquiry proceedings. To consider as to whether the

provisions of the above two Government Orders requiring the

complaint to be submitted on an affidavit are mandatory or directory,

it will be useful to refer to some legal pronouncements of Hon'ble the

Apex Court in this regard.

26. The Hon'ble Supreme Court in the case of May George Vs.

Special Tehsildar and Others, (2010) 13 SCC 98, has stated the

precepts, which can be summed up and usefully applied by this Court,

as follows:

(a) While determining whether a provision is mandatory or directory,

somewhat on similar lines as afore-noticed, the Court has to examine

the context in which the provision is used and the purpose it seeks to

achieve;

(b) To find out the intent of the legislature, it may also be necessary to

examine serious general inconveniences or injustices which may be

caused to persons affected by the application of such provision;

(c) Whether the provisions are enabling the State to do some things

and/or whether they prescribe the methodology or formalities for

doing certain things;

(d) As a factor to determine legislative intent, the court may also

consider, inter alia, the nature and design of the statute and the

consequences which would flow from construing it, one way or the

other;

(e) It is also permissible to examine the impact of other provisions in

the same statute and the consequences of non-compliance of such

provisions;

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(f) Physiology of the provisions is not by itself a determinative factor.

The use of the words `shall' or `may', respectively would ordinarily

indicate imperative or directory character, but not always.

(g) The test to be applied is whether non-compliance with the

provision would render the entire proceedings invalid or not.

(h) The Court has to give due weightage to whether the interpretation

intended to be given by the Court would further the purpose of law or

if this purpose could be defeated by terming it mandatory or

otherwise.

27. Reference can be made to the following paragraphs of May

George (supra) :

"16. In Dattatraya Moreshwar Vs. The State of Bombay

and Others, AIR 1952 SC 181, the Court observed that

law which creates public duties is directory but if it

confers private rights it is mandatory. Relevant passage

from this judgment is quoted below:

`7........It is well settled that generally speaking the

provisions of the statute creating public duties are

directory and those conferring private rights are

imperative. When the provisions of a statute relate to the

performance of a public duty and the case is such that to

hold null and void acts done in neglect of this duty would

work serious general inconvenience or injustice to

persons who have no control over those entrusted with

the duty and at the same time would not promote the

main object of legislature, it has been the practice of the

Courts to hold such provisions to be directory only, the

neglect of them not affecting the validity of the acts

done."

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28. A Constitution Bench of the Apex Court in State of U.P. and

Others Vs. Babu Ram Upadhya, AIR 1961 SC 751, decided the

issue observing:

"29.....For ascertaining the real intention of the

Legislature, the Court may consider, inter alia, the

nature and the design of the statute, and the

consequences which would follow from construing it the

one way or the other, the impact of other provisions

whereby the necessity of complying with the provisions in

question is avoided, the circumstance, namely, that the

statute provides for a contingency of the non-compliance

with the provisions, the fact that the non- compliance

with the provisions is or is not visited by some penalty,

the serious or trivial consequences that flow therefrom,

and, above all, whether the object of the legislation will

be defeated or furthered."

29. In B.S. Khurana and Ors. v. Municipal Corporation of Delhi

and Ors., (2000) 7 SCC 679], the Apex Court considered the

provisions of the Delhi Municipal Corporation Act, 1957, particularly

those dealing with transfer of immovable property owned by the

Municipal Corporation. After considering the scheme of the Act for

the purpose of transferring the property belonging to the Corporation,

the Court held that the Commissioner could alienate the property only

on obtaining the prior sanction of the Corporation and this condition

was held to be mandatory for the reason that the effect of non-

observance of the statutory prescription would vitiate the transfer

though no specific power had been conferred upon the Corporation to

transfer the property.

30. In State of Haryana and Anr. v. Raghubir Dayal, (1995) 1 SCC

133, the Apex Court has observed as under:

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"5. The use of the word `shall' is ordinarily mandatory

but it is sometimes not so interpreted if the scope of the

enactment, or consequences to flow from such

construction would not so demand. Normally, the word

`shall' prima facie ought to be considered mandatory but

it is the function of the Court to ascertain the real

intention of the legislature by a careful examination of

the whole scope of the statute, the purpose it seeks to

serve and the consequences that would flow from the

construction to be placed thereon. The word `shall',

therefore, ought to be construed not according to the

language with which it is clothed but in the context in

which it is used and the purpose it seeks to serve. The

meaning has to be described to the word `shall; as

mandatory or as directory accordingly. Equally, it is

settled law that when a statute is passed for the purpose

of enabling the doing of something and prescribes the

formalities which are to be attended for the purpose,

those prescribed formalities which are essential to the

validity of such thing, would be mandatory. However, if

by holding them to be mandatory, serious general

inconvenience is caused to innocent persons or general

public, without very much furthering the object of the

Act, the same would be construed as directory."

31. The purpose of the aforesaid government Orders is very clear

which is to prevent unnecessary harassment to the public servant

which may be occasioned by lodging of false and frivolous complaints

by anonymous persons only with the oblique purpose of causing harm

to the reputation and career such public servant, without there being

any basis for the said allegations.

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32. At this stage, we would hasten to add, the aforesaid Government

Orders, on the other hand does not grant an omnibus or to prevent any

inquiry where there are serious allegations of corruption, and the

allegations are based on verifiable facts. In case there are serious

allegations of corruption and amassing of property through corrupt

means, then mere giving a list of property would be sufficient to

initiate preliminary inquiry.

33. These Government Orders cannot be utilised by public servant to

stall any inquiry, as this could never have been the intention of the

State Government while passing the Government Orders. Where it is

found that the allegations relate to actions/facts which are not in the

public domain and are dependent upon the statements or material

which can be disclosed only by private individuals, in such cases it

would be necessary to proceed only when such allegations are made

on affidavit, as most people tend to retract from their statements when

asked to depose against a public servant during inquiry.

34. The provisions of Government Orders dated 9th May, 1997 and

1st August, 1997 are only to ensure that a public servant is not

harassed and is not faced with base less and false allegations. It is not

the mandate of the said Government Orders that no preliminary

inquiry can proceed unless and until the complaint is given on

affidavit. It is only a measure as to filter baseless and motivated

complaints and to provide guidelines to the authorities to see that a

person making complaint is serious about his complaint and there is

substantial material in the same and is not made with oblique motive

without having any basis. The said Government Orders also do not

prescribe the consequences of non compliance and therefore, this

Court is of the considered view that the said Government Orders are,

only 'guidelines' and are directory and not mandatory. Each complaint

has to be examined individually to come to a conclusion as to whether

the allegations are serious and worthy of an inquiry or are otherwise

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baseless, made with intention to harass the Government servant. It is

also noticeable that if after a complaint is made on the basis of an

affidavit it has to be followed by an inquiry to verify the contents

contained therein and in any case the affidavit in itself cannot be sole

basis for taking any action against the delinquent employee.

35. Considering the facts on record specially considering the order

dated 30th June, 2021, it is noticed that it is only after due diligence

and after verifying the requisite facts, that the competent authority as

well as the Vigilance Establishment proceeded to inquiry into the

matter.

36. The arguments of learned counsel for the petitioner with regard to

the said issue does not merit any interference and are hence, rejected.

37. The second ground for assailing the said Vigilance inquiry is the

fact that in the present case where the petitioner has already been

awarded punishment of 'censure', he cannot be proceeded against on

the same set of facts and has invoked principle of "double jeopardy".

38. It has been brought forth clearly in the various documents annexed

with the writ petition as well as stand taken by the respondents that

punishment of 'censure' was awarded only because the petitioner has

purchased fire arm and sought permission of the State Government

after great delay. Issue of disproportionate assets and amassing wealth

beyond known sources of income no departmental proceedings were

ever initiated against him and no charge sheet was ever served on him.

It has also come on record that with regard to inquiry conducted by

the Economic Offices Wing and subsequently by the Vigilance

department never attained finality and consequently it cannot be said

that the petitioner is being punished again on the basis of facts on

which the present inquiry is being conducted. The principle of "double

jeopardy" is not applicable to the facts of the present case.

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39. In the light of aforesaid decisions second ground raised by the

petitioner is accordingly rejected.

40. It was further contended that once an inquiry is concluded in

favour of the petitioner and inquiry report submitted the competent

authority even conducted inquiry again on the same set of facts, would

amount to harassment and may merit interference of this Court in

exercise of powers under Article 226 of the Constitution of India.

41. It is noticed that on the first occasion there were allegations

regarding purchase of only ten properties by the petitioner, and the

inquiry report submitted by the Economic Offences Wing to the State

Government was never accepted and hence subsequent Vigilance

inquiry was initiated. The Vigilance Establishment also conducted

inquiry and submitted its report to the State Government, which again

was not accepted, as the State Government was of the opinion that

inquiry was not conducted fairly and hence fresh inquiry is sought to

be conducted on the basis of 14 properties acquired by the petitioner,

by a senior Police Officer not below the rank of Inspector General of

Police.

42. It has been vehemently submitted that four properties which are

alleged to have been acquired by the petitioner were never subject

matter of the earlier preliminary inquiries and hence it cannot be said

that subject matter of the earlier inquiries are same as that of the

present inquiry.

43. It cannot be said that the petitioner is being harassed. It was

informed to this Court that now inquiry is being directed to be

conducted by the officials not below the rank of Inspector General of

Police to ensure that proper and fair inquiry is made into the

allegations leveled against the petitioner.

44. It is further noticed that mere conducting preliminary inquiry

cannot amount to harassment as at this stage the petitioner is not

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subjected to any adverse consequences as a result of the said inquiry.

The Vigilance inquiry is a fact finding inquiry were only veracity of

the allegations are sought to be tested and it is only when the

allegations are found to be correct then only disciplinary proceedings

are initiated and the petitioner is given charge sheet.

45. Considering the aforesaid facts, this Court does not find any

reason to interfere with the impugned order, whereby open Vigilance

inquiry is sought to be initiated against the petitioner.

46. The writ petition being devoid of merits, is accordingly dismissed.

Order Date :- 05.08.2022

A. Verma

(Alok Mathur, J.)