TaxTMI 
TaxTMI 
2017 (7) TMI 1244
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.... 2016 in respect of the sale of banned substances viz., Gutkha and Pan Masala in the State of Tamil Nadu, with a view to stall the appointment of a probable candidate as Director General of Police. The Writ Petition filed by the Lawyer under the banner of Public Interest Litigation was dismissed by a Division Bench presided over by MR.JUSTICE SANJAY KISHAN KAUL [as His Lordship then was], by raising a doubt about the bona fides of the petitioner in filing the Writ Petition and with an observation that it would not be proper for advocates to lend their names as litigants and lending their shoulder to fire the gun, something which is condemnable. Now, it is the turn of a Trade Union Leader challenging the appointment of the fifth respondent as Director General of Police under the brand name "Pro Bono Publico" on the very same grounds raised in the Writ Petition filed by the Lawyer in W.P.No.1846 of 2017, which was dismissed by the First Bench, by order dated 27 January, 2017, the only difference being that the earlier Writ Petition was filed before the Principal Bench at Madras and the present one is before the Bench at Madurai. THE ORDER UNDER CHALLENGE: 2. The challenge in th....
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....m the Income Tax Department was forwarded to the Director of Vigilance and Anti-Corruption for enquiry. The petitioner contended that it was not proper to appoint the fifth respondent as Director General of Police during the pendency of the enquiry into the corruption charges by the Vigilance and Anti-Corruption Department. (D). According to the petitioner, the grant of extension of service to the top level officer was a colourable and mala fide exercise of power. The petitioner, therefore, seeks an order to quash the appointment and a consequential direction for a thorough investigation by the Central Bureau of Investigation. MATERIALS PRODUCED: 5. The petitioner has not produced any material along with the Writ Petition to substantiate his allegation against the fifth respondent. The Newspaper reports regarding the question raised by the opposition leader on the floor of the Assembly and the reply given by the Chief Minister alone were produced to contend that the fifth respondent received bribe from a Gutkha Manufacturer and as such, his appointment is liable to be quashed. THE INTERIM ORDER DATED 06 JULY, 2017: 6. The Writ Petition was taken up for admission on 0....
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..... The Chief Commissioner of Income Tax produced a copy of the statement of Shri. Madhava Rao, Partner of the Gutkha Firm with annexure. The Director of Vigilance and Anti-Corruption produced the Case Diary. SUMMARY OF SUBMISSIONS: 8(A) The learned counsel for the petitioner made the following submissions: (i) The fifth respondent was given extension of service in a routine and casual manner notwithstanding the availability of materials suggesting his acceptance of bribe. (ii) The incriminating documents seized by the Income Tax Department were not forwarded to the Union Public Service Commission [in short "UPSC"].The UPSC, therefore, failed to consider the integrity of the fifth respondent and his ineligibility for appointment to the sensitive post. (iii) The names of the other senior-most Police Officers were also included in the panel. There are officers more competent than the fifth respondent. However, the Government favoured only the fifth respondent for extraneous consideration. (iv) The enquiry is now conducted by the Directorate of Vigilance and Anti-Corruption. The Vigilance Commissioner is the controlling authority. The Vigilance Commissioner and the fif....
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....rials should be disclosed in our order during the currency of enquiry by the Vigilance and Anti-Corruption Department. To our surprise, the petitioner himself through his counsel produced the materials collected by the Income Tax Department after the conclusion of arguments. In case these documents were produced by the petitioner along with the Writ Petition, we could have avoided summoning records from the State Government, the Income Tax Department and Directorate of Vigilance and Anti-Corruption. WHETHER APPOINTMENT WAS IN THE NATURE OF EXTENSION OF SERVICE: 11(A). The petitioner proceeded under the premise that the fifth respondent was given extension of service by the State. This is clear from the grounds raised by him and his reliance on the decision of the Bombay High Court in R.R.Tripathi vs. Union of India [2008(3) AIR Bom 404], which was in relation to the challenge made to an order granting extension of service to the Director General of Police and other Senior Police Officers by the Government of Maharastra. (B). The appointment of the fifth respondent on 30 June, 2017, was not in the nature of extension of service. He was appointed as Director General of Polic....
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....ugh the intermediaries. Insofar as the Police Department is concerned, payments were made through Mr.Rajendran. (D) There is nothing available on record to show that the Partner of the Gutkha Manufacturing Concern contacted the recipient of illegal gratification then and there or later for confirmation of the receipt of money. Since no such confirmation was made, it cannot be said, without proper enquiry that the money was actually received by the alleged beneficiaries. PRELIMINARY ENQUIRY BY VIGILANCE AND ANTI- CORRUPTION: 14. The Directorate of Vigilance and Anti Corruption registered a preliminary enquiry case, pursuant to the direction given by the Vigilance Commissioner. During the course of enquiry, the Additional Superintendent of Police examined Thiru. Rajendran, whose name was referred to in the incriminating documents, as the person who actually paid the money to the Police Officers on behalf of the Gutkha Manufacturer. Thiru. Rajendran denied the allegation that money was paid by him to the Police Officers. His statement was recorded long before the name of fifth respondent was forwarded by the State to the UPSC for appointment as Director General of Police. ....
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....of Police. Mere allegation alone would not be sufficient to deny appointment, unless it is corroborated by acceptable evidence. (ii) There was no case registered against the fifth respondent for corruption or misconduct as on the date on which his name was forwarded by the State Government to the UPSC. Similarly, there was no case pending or contemplated against the fifth respondent as on the date on which he was empaneled by the UPSC. (iii) The allegation was to the effect that the Gutkha Manufacturer has paid money to the Commissioner of Police through Mr.Rajendran. It was not the case of the Partner of the Gutkha Firm, who was examined by the Income Tax officials, that he made payment directly to the fifth respondent or that he personally or otherwise confirmed the receipt of money from Mr.Rajendran by the beneficiary. (iv) Even before forwarding the name of the fifth respondent along with the names of other Police Officers to the UPSC by the State Government for empaneling the eligible officers, the Vigilance and Anti-Corruption examined the alleged intermediary Mr.Rajendran. In his statement, Mr.Rajendran stated that no such payment was made by him to the Police Offic....
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....mil Nadu, on 30 June, 2017. The successive Governments in power have certified that his performance was outstanding. All these relevant materials were considered by the Union Public Service Commission while empaneling the fifth respondent along with other eligible Senior Officers. We, therefore, hold that the Union Public Service Commission was justified in empaneling the fifth respondent for appointment to the post of Director General of Police. MERIT REVIEW: 17(A). The learned counsel for the petitioner, by placing reliance on the averments in the affidavit filed in support of the Writ Petition, strenuously contended that there are highly qualified and efficient Police Officers eligible for appointment as Head of State Police and that the State Government was not correct in appointing the fifth respondent, who is atainted officer. The petitioner appears to be holding the brief of others and that must be the reason for his request to undertake the exercise of merit review. As observed by the Hon'ble Supreme Court in R.K.Jain vs. Union of India [1993(4) SCC 119] and Centre For PIL vs. Union of India [2011(4) SCC1], Judicial review is concerned only with the question wheth....
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.... how the writ petitioner got a copy of the Secret/confidential letter sent by the Commissioner of Police to Home Secretary. While dismissing the Writ Petition, by order dated 27 January, 2017, in W.P.No.1846 of 2017, the First Bench was pleased to make the following observation: "4. We also doubt the bona fides of the petitioner in filing the present petition. We have even earlier commented number of times on advocate lending their names as litigants and lending their shoulder to fire the gun ,something which is condemnable. This is one more such case. It, in fact, seeks to give an impression as if some view officially taken is sought to be further pressed in the government decision system by filing a public interest litigation." PETITIONER - MERE NAME LENDER: 19(A). The details furnished by the petitioner in this Writ Petition and his access to the records kept in the custody of public authorities clearly show that he is only a name lender and he is acting at the behest of others. We are fortified in the above conclusion on account of the indication in the order dated 27 January, 2017 in W.P.No.1846 of 2017, that the initiation of Public Interest Litigation was an attempt....
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....papers have reported that the relevant file containing the incriminating materials was missing and, therefore, wanted the Income Tax Department to file an affidavit, with regard to handing over of documents to the Chief Secretary. We declined to re-open the matter for the reason that there are materials produced by the Income Tax Department before us to show that the Principal Director of Income Tax Department, Chennai, met the then Chief Secretary on 12 August, 2016. The affidavit filed by the Chief Secretary now indicates that those materials are not available with her office. This is a matter to be enquired into by the Vigilance and Anti-Corruption, during the course of enquiry. While appreciating the efforts taken by the Principal Director of Income Tax (Investigation), Chennai and his team of officers for exposing those who are dealing in illegal Gutkha and Pan Masala Trade and their patrons and well-wishers in Government Service and to unearth black money and evasion of tax, we do not express any opinion with regard to this contentious issue, in view of our decision to direct the Vigilance and Anti-Corruption to hold a detailed enquiry in the matter. JUDGMENT CITED BY THE ....
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.... of account has been regularly kept in the course of business. From the above section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability........................" (B) The Supreme Court in V.C.Shukla's case, after scanning the earlier decisions, opined that the Members of Parliament accused of receiving illegal gratification cannot be charged on the basis of the entries found in the account books. "39. A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the former's correctness still those entries would not be sufficient....
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....led was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily........." RELEVANCY OF V.C.SHUKLA AND SAHARA CASE: 24. In V.C.Shukla's case, the CBI investigated the matter and filed the final report, resulting in taking cognizance by the Special Court. The charge framed against Sri.V.C.Shukla was quashed by the High Court and it was confirmed by the Supreme Court. The order framing charge against Sri.L.K.Advani was set aside by the High Court and upheld by the Supreme Court. In Sahara and Aditya Birla Case, the Supreme Court negatived the request even to direct the Special Investigating Team of CBI to register a case and hold enquiry. In the present case, the allegation against the fifth respo....
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....t it would not be possible for the Directorate of Vigilance and Anti-Corruption to hold impartial enquiry, in view of the involvement of a Minister and high ranking police officers. (D) The Directorate of Vigilance and Anti-Corruption is an independent Organization and its officers are not answerable to the State Police or political executive. We are informed that in the neighbouring State of Kerala, the Vigilance and Anti-Corruption Department registered a case against the Minister of the former Government for corruption after holding preliminary enquiry and the same resulted in the resignation of the concerned Minister. Similarly, another Minister in the present Cabinet of the Government of Kerala also resigned recently pursuant to the registration of a case against him by the Directorate of Vigilance and Anti-Corruption, Kerala, for corruption and favoritism. This would clearly indicate that the Directorate of Vigilance and Anti-Corruption has been functioning independently and without any interference from those who are in power. In any case, there are no materials before us to suggest that a thorough investigation would not be conducted by the Directorate of Vigilance and A....
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.... The enquiry by the Vigilance and Anti-Corruption must inspire confidence in the general public. The common man would be justified, in case there is an apprehension that the Directorate of Vigilance and Anti-Corruption would not hold enquiry independently and in a fair manner, in the event of the enquiry being monitored by an authority, who is also the administrative head of the Home Department, under whom, the Director General of Police is functioning. The enquiry by the Directorate of Vigilance and Anti-Corruption must not only be done in a fair manner, but, it should also appear to be done fairly. Therefore, it would neither be fit nor proper to designate the Home Secretary as the Vigilance Commissioner. Since the present enquiry relates to the allegation of acceptance of illegal gratification by high ranking public servants, we are of the view that the State must appoint a Vigilance Commissioner with independent charge. CONCLUSION: 28. For the reasons aforesaid, we hold that "(a) the State was correct in its decision selecting and appointing the fifth respondent as the Director General of Police; (b) the entries made in the records seized from the Gutkha Manufacture....