AK Vishwanathan v. State of Tamil Nadu

AK Vishwanathan v. State of Tamil Nadu

Citation	WRIT PETITION No.9077 of 2010
Date of Judgment	10th July, 2010
Court	Supreme Court of India
Case type	Writ petition
Petitioner	AK Vishwanathan
Respondents	1.State of Tamil Nadu,                                         2.The Chief Secretary to 3.The Vigilance Commissioner 4.The Director,   Vigilance and Anti-Corruption,   Chennai5.Deputy Superintendent of Police,   Vigilance and Anti-Corruption,   Chennai
Bench	Mr. Justice V. Dhanapalan
Referred Statutes	Code of Criminal Procedure, 1972Administration of Tribunals Act, 1985All India Services Act, 1951Prevention of Corruption Act, 1988

Facts of the case 

In the past, the petitioner was successfully admitted to the Tamil Nadu Cadre as IPS officers by the Union Public Service Commission. On 19/02/2009, on the command of his senior, Mr. Radhakrishnan (the then, Commissioner of Police), the petitioner (then being additional commissioner of Police at Chennai city) came to the High Court to oversee the nearby security and make arrangements for the arrival of Dr. Subramanian Swamy as he had his appearance before the Hon’ble Court. At the High court, after that, some firing of tear gas shells and lathi charge was noticed (‘the incidence’). But before that, at 14:45 hours the petitioner left the place of incidence on the orders of Mr. Radhakrishnan only to monitor the surrender of some accused at a nearby police station. The High Court took Suo moto cognizance of the incident and initiated proceedings against the officials permitting lathi charge. It was falsely reported by Mr. Radhakrishnan that the petitioner had a role to play in the same and the court suspended the petitioner from service because of the same. Soon after, the petitioner challenged this decision under a Special leave petition, which was granted and eventually, Mr. Radhakrishnan was solely held responsible. 

During the same year, on 28/08/2009, a committee was constituted of members including the Home secretary, the Chief secretary and the Vigilance commissioner to initiate a vigilance enquiry against the petitioner. No information whatsoever was provided to the petitioner and he only came to know about it through the newspaper. This committee was set up to inquire into the disproportionate wealth of the petitioner in relation to his source of income. On 9/12/2009, questioning took place against the petitioner by the Deputy Superintendent of Police and Commissioner Vigilance and Anti-Corruption. And on, 18/01/2010, he was asked to submit copies and reports of his house which will be evaluated by PWD engineers. 

The petitioner believes that this inquiry is not in true spirits and is not legal in nature because he is an IPS officer and is governed by rules prescribed under the All India Services Act. The petitioner believes that this illegal inquiry is in connection with the incident and its subsequent writ petitions and, if permitted, would lead to paralysis of the administration system.

In response to the same, the respondents have challenged the maintainability of this writ petition as they believe the Central Administrative Tribunal is the right platform to assess this situation. Furthermore, they have asserted the legal jurisdiction of the State in conducting inquiries with availability of prima facie evidence especially in cases of Vigilance and anti-corruption. This enquiry as asserted by the respondents, is a mere fact finding inquiry and no legal proceedings in the form of FIR or any other has been initiated against the petitioner. It is only to safeguard officers from false cases and build true cases only. Hence, they believe this petition to be premature and misconceived and liable to be dismissed.

Issues

1. Whether the Writ petition is valid either under Article 226 of the constitution of India or Section 482 of the Code of Criminal  Procedure? 
2. Whether the inquiry conducted against the petitioner legal in nature? 

Arguments

Petitioner

The counsel for Petitioner has challenged the jurisdiction of the state under Entry 70 of List I (Union) under the 7^th Schedule of the Constitution of India, which authorises the Parliament only to have legislative competence over All India Services. The All India Services Act (‘the parent act’) and the rules framed thereunder and the Public Servant Inquiries Act, all are under Central Government’s share of power by the virtue of Article 73 of the Constitution of India. Moreover, the questionnaire was served to the Petitioner by an officer below petitioner’s rank hence, this is an abuse of process of law.

To stern his claims, the counsel has relied on many judgments including P.Sirajuddin v. State, AIR 1968 MADRAS 117, which held preliminary inquiries against the spirit of Section 154 of CrPC. They held that these inquiries can potentially lead to fabricated cases and destroy the intention of First information Reports. The counsel also built how baseless and false allegations can harm one’s reputation, especially a police officer of petitioner’s rank. 

Concerning the jurisdiction of the writ, the counsel cited the S.N. Sharma v. Bipen Kumar Tiwari, AIR 1970 SUPREME COURT 786, wherein it was held the High Court hold substantial power under article 226 through mandamus to prevent any misuse of law by police officers during investigations. Similar stance was of State of Haryana v. Bhajan Lal, AIR 1992 SUPREME COURT 604, wherein it was held that a Magistrate should be involved at every stage of investigation to circumscribe the unfettered powers of police officers and restrict it, if done with malafide intention. Moreover, the Supreme Court in State of Bihar v. J.A.C. Saldanha (AIR 1980 SC 326), examined the types of cases wherein High Court’s jurisdiction shall stand. This includes ‘’ Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party” and ‘’Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” It was held in M.C. Mehta v. Union of India, AIR 2007 SUPREME COURT 1087, that Code of Criminal Procedure shall prevail over CBI manual hence, section 154 holds much value and filing of FIR is a pre-requisite. Also, the investigation and it’s loopholes are within the jurisdiction of High Court and this contention is beyond any controversy.

The counsel for petitioner submitted these contentions and claimed that the inherent Jurisdiction of the High Court in these matters is present. 

Respondent

The Advocate general pleading for the respondents submitted that this is a fit case for Section 14 the Administrative Tribunals Act, 1985, which includes ‘ all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any’,  the term ‘service matters’ is defined under section 3(q) of the same act, and includes many aspects like remuneration, tenure, leaves disciplinary matters and/or any other matter whatsoever. It was also held in L. Chandra Kumar v. Union of India, AIR 1997 SUPREME COURT 1125, that tribunals shall act like Courts of first instance for the area of law they’ve been specifically constituted for and it is not open to directly approach the High Court. Hence, this matter should be before the Central Administrative Tribunal.

Moreover, the inquiry conducted against the petitioner is in accordance with the Manual of Directorate of Vigilance & Anti Corruption and is only a form of ‘indoor inquiry’ to substantiate claims before proceeding with any form of criminal inquiry or charges. The counsel relied on P. Sirajuddin v. State of Madras, which allows for departmental inquiries by Vigilance and anti-corruption Department before formal pressing of criminal charges.

Judgment

In reference to the maintainability of the Writ petition, light was shed upon the prominent Article 226 of the Constitution of India. To assert the same, an analysis whether the said act would fall under the jurisdiction of Central Administrative Tribunal through Section 14 of the Administrative Tribunals Act,1985 is required. ‘Any matter whatsoever’ under this section has been interpreted in Union of India v. Rasila Ram and Others, (2001) 10 Supreme Court Cases 623 wherein, it was held that if any other specific act regulates the subject matter, than it shall not come within the ambit of this definition and hence, debarring the jurisdiction of the Central Administrative Tribunal. Moreover, as the petitioner falls under ‘public servant’ definition of Prevention of Corruption Act, 1988, the All India Service Rule, 1969’s Rule 7 shall be applicable which authorises the State to take action against public servants in cases of any act or omission done by them which shall attract penalty. Also, the disproportionate assets allegation would not even come under Section 3 of Administrative Tribunals Act’s matter of ‘disciplinary matters’ since this matter concerns corruption and hence, another Act shall apply. Therefore, the High Court in this matter has jurisdiction and the Writ is maintainable.

Secondly, the inquiry instituted against the petitioner is in compliance with clause 15 of the Directorate of Vigilance and Anti-corruption, which authorises the commissioner to initiate preliminary enquiry after approval of the government. In this case, the State government itself constituted a three-member committee to look into such matters on 10.10.1996 as per G.O.Ms.No.374. Moreover, rule 7(1)(b) of All India Services (Discipline and Appeal) Rules 1969 authorises State to take action against the Public Servant for any act or omission attracting penalty during his association with the government. Therefore, the state alone is rightly empowered to initiate preliminary inquiry against the petitioner. In relation to the questionnaire served to the petitioner, it was for a crime under Section 13 (1) (e) of the Corruption and Prevention Act, and according to its section 17, if any officer even below the rank of Inspector of Police is authorised to do inquiry, it shall not be contrary to the act, which in this case shall apply as the Deputy Superintendent of Police was working on direction of the State government as per Clause 4 (2) of the Manual, coupled with the Government Order of Tamil Nadu, vide G.O.Ms.No.269, Personnel & Administrative Reforms (Personnel-N), dated 04.06.1990, all Inspectors of Police of the Directorate have been authorised to exercise powers of investigation. Also, the proviso clause of Article 73(1) of the Constitution of India restricts Parliaments power to cases where state government also has legislative power.

Lastly, the petitioner is not entitled to any information gathered through inquiry(s), and the inquiry is at a very initial stage and should be allowed. According to the notification issued on 26/08/2008, the power conferred by section 24(4) of the RTI, 2005 act shall not apply to Tamil Nadu Department of Vigilance and Anti-corruption.

Therefore, no mala fide intention on behalf of the Respondent(s) can be seen and they have not transgressed their share of power.

Hence, this writ petition stands dismissed with no costs. 

References

https://indiankanoon.org/doc/883438/

https://vlex.in/vid/k-viswanathan-vs-1-572247490

written by Disha Bhalla, Dr. Ram Manohar Lohiya National Law University, Lucknow,(An Intern under Legal Vidhiya)