Kerala High Court

Sumahiya M.M vs The Director Of Vigilance on 28 May, 2024

Author: K. Babu

Bench: K. Babu

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
            THE HONOURABLE MR.JUSTICE K. BABU
 TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
                 WP(C) NO. 36567 OF 2023
PETITIONER/S:

         SUMAHIYA M.M.
         AGED 32 YEARS
         D/O. MUHAMMED ALI M.A. MOOKKADA HOUSE, MUDICKAL
         P.O.,ERNAKULAM DISTRICT, PIN - 683542
         BY ADVS.
         ESM.KABEER
         C.SHEEBA
         KIRAN JOSE


RESPONDENT/S:

    1    THE DIRECTOR OF VIGILANCE
         ANTI-CORRUPTION BUREAU, VIKAS BHAVAN,
         THIRUVANANTHAPURAM, PIN - 695033
    2    THE SUPERINTENDENT OF POLICE
         V.A.C.B CENTRAL ERNAKULAM, PIN - 682017
    3    THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
         CIVIL STATION, KAKKANAD, ERNAKULAM, PIN -
         682030
    4    THE ASSISTANT REGISTRAR OF CO-OPERATIVE
         SOCIETIES(GENERAL)
         KUNNATHUNADU, PERUMBAVOOR, ERNAKULAM, PIN -
         683542
    5    MARAMPALLY SERVICE CO-OPERATIVE BANK LTD NO.E-
         265
         REP. BY ITS SECRETARY, MARAMPALLY P.O,
         ERNAKULAM, PIN - 683105
    6    THE DIRECTOR BOARD
         MARAMPALLY SERVICE CO-OPERATIVE BANK LTD REP.
         BY ITS PRESIDENT, MARAMPALLY P.O; ERNAKULAM,
         PIN - 683105
         BY ADVS.
         R1 TO R4 BY SRI A RAJESH, (SPL. GP VIGILANCE)
                      SMT S REKHA SR PP
 W.P.(C) No.36567 of 2023
                              ..2..




            R5 AND R6 P.N.MOHANAN
                      AMRUTHA SURESH(K/000971/2016)


    THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 28.05.2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.36567 of 2023
                                   ..3..




                             K.BABU, J
            -------------------------------------------------
                    W.P.(C) No.36567 of 2023
             -------------------------------------------------
             Dated this the 28th day of May, 2024

                             JUDGMENT

The prayers in the Writ Petition are as follows:-

"(i) To call for the records relating to Exhibit P1 to P7 and to issue a Writ of Mandamus directing the 2nd respondent to conduct an enquiry about the issues raised in Exhibit P5 petition in a time bound manner.

(ii)To issue a Writ of Mandamus directing the 1st respondent to take appropriate action pursuant to Exhibit P4 complaint as expeditiously as possible.

(iii)To issue any writ, order or direction directing the respondents 5 and 6 not to proceed with Exhibit Pl notification till Exhibit P4 and P5 complaints are being processed and disposed.

(iv) Dispense with the filing of the translation of vernacular documents.

(v)Any other reliefs also may be granted in order to meet out justice considering the circumstances of the case"

2. Heard the learned Senior Counsel Smt Sumathi

Dandapani assisted by Advocate Muhammed Kabeer

..4..

appearing for the petitioner, Sri. A Rajesh, the learned

Special Government Pleader and Sri.P.N.Mohanan, the

learned Standing Counsel for respondent No.5.

Facts:-

3. The Marampally Service Co-operative Bank Ltd,

on 12.12.2022, issued a notification for appointment to

the posts of Salesman, Peon, Night Watchman, Part time

Sweeper etc. The petitioner submitted application to the

post of Peon. The petitioner came to know from reliable

sources that the Director Board of the Marampally

Service Co-operative Bank Ltd had already decided the

persons to be appointed to the six posts notified. On

30.12.2022, the petitioner submitted a complaint (Ext.P3)

before the Assistant Registrar of Co-operative Societies

(General), Kunnathunadu (respondent No.4) seeking an

enquiry into the allegations levelled by her that the

Director Board had already taken a decision to appoint

the following six persons to the notified vacancies:-

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(a) Latheef S/o Ibrahimkutty, Kadavil,

Marampilly,

(b) Suhail S/o, Ismail, Poonapilly(H), Manjapetty,

Marampilly P.O.

(c)Muhammed Shafi, S/o Nazar,

Nayattuparambil, Marampilly P.O.

(d)Bheema Beevi, W/o Rahim Kallekuzhy,

Kunnukara, Marampilly

(e)Fayaz Muhammed, S/o Muhammed

(Kunhami), Mukkada, Mudickal P.O.,

(f) The D/o the Sweeper working in the Bank

4. Consequently respondent No.4 instructed the

Board of Directors to conduct the selection process in a

transparent manner and also in accordance with the

provisions of the Kerala Co-operative Societies Act and

Rules. On 30.12.2022, the petitioner had also submitted

a representation (Ext.P3) before the Joint Registrar of Co-

operative Societies, Ernakulam (respondent No.3) raising

the same allegations. The petitioner also submitted a

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complaint before the Vigilance and Anti-Corruption

Bureau seeking an enquiry into the allegations (Ext.P5).

Respondent No.3 issued a direction to the Board of

Directors to conduct the selection process with the help

of an approved agency recognized by the Registrar of Co-

operative Societies. The written test was scheduled to be

held on 09.09.2023. The petitioner specifically alleges

that respondent Nos. 5 and 6 had already decided the

persons to be appointed and that the members of the

Director Board received Rs.10 Lakhs each from said

persons as bribe for appointing them.

5. The Dy. Superintendent of Police, VACB, Central

Range Ernakulam submitted a statement on 12.12.2023

contending that as the appointment process was found to

be in initial stage and no appointment was seen made,

there was nothing to suggest the intervention of the

Vigilance in the matter.

6. The Secretary of the Co-operative Society, for

and on behalf of respondent Nos. 5 and 6 filed a counter

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affidavit. Respondent Nos. 5 and 6 pleaded that as

directed by the circular of the Joint Registrar, an outside

agency namely 'Kairali Education Trust' conducted a

written examination on 10.02.2024 and the Managing

Committee conducted an oral examination of the

successful candidates on 21.02.2024. And thereafter, on

23.02.2024, a ranked list was published. The Secretary

of the Co-operative Society further stated that all the

notified vacancies were filled up from the ranked list and

the appointees joined duty on 26.02.2024.

7. On 27.02.2024, the petitioner filed an affidavit

stating that her complaint stands proved by the selection

and appointment of persons mentioned by her in her

complaint dated 30.12.2022. In the affidavit, the

petitioner specifically stated that the Board of Directors

appointed the candidates after accepting bribe. The

petitioner further stated that more than 30 candidates

had applied for the notified posts but the appointments

were given to the predetermined persons after obtaining

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bribe. The learned Senior Counsel submitted that, as

early as on 30.12.2022, the petitioner got reliable

information that respondent No.6, after obtaining bribe,

had decided to appoint persons named in paragraph 3 of

the writ petition. As persons pointed out by the petitioner

as early as on 30.12.2022, from whom the Director Board

members allegedly received bribe, have been appointed,

the learned Senior Counsel points out that the petitioner

could prima facie establish that the members of the

Director Board committed offences under Sections 7 and

13(1(a) of the Prevention of Corruption Act, 1988. The

learned Senior Counsel submitted that an enquiry into the

allegations levelled by the petitioner is highly required.

8. The learned Special Government Pleader

submitted that the Vigilance and Anti-Corruption Bureau

had no role to play in the initial stage as no appointment

as alleged by the petitioner had happened. The learned

Special Government Pleader further submitted that in the

present scenario if the statement of the petitioner that six

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persons pointed out by her long back were appointed is

true, this would be a case which requires a preliminary

enquiry. The learned counsel appearing for respondents

5 and 6 submitted that the selection process was done in

a transparent manner with the aid of an approved outside

agency and there is nothing to show that the Director

Board members received any bribe as alleged.

9. The notification for the appointment was issued

on 12.12.2022 for six posts as seen from Ext.P1. In

Ext.P3 complaint submitted before the Joint Registrar on

30.12.2022, the petitioner had specifically alleged that

the Secretary and the members of the Director Board

received Rs.10 lakhs each from six persons and the

selection process is only a camouflage. In Ext. P3

complaint dated 30.12.2022, the petitioner specifically

named the persons who allegedly agreed to give bribe

seeking appointment. The same allegations were levelled

by the petitioner on 30.12.2022 before respondents 1 and

2. It is submitted on behalf of the co-operative society

..10..

that written examination was conducted by a private

agency namely Kairali Education Trust on 10.02.2024 and

the oral examination was conducted on 21.02.2024. It is

pertinent to note that the persons stated to have given

bribe have been appointed by respondent Nos. 5 and 6.

The petitioner could prima facie establish her allegations.

I am satisfied from the pleadings and the submissions

that an enquiry into the allegations levelled by the

petitioner is required.

10. The persons against whom the allegations are

levelled are public servants as provided in the Prevention

of Corruption Act, 1988. The learned Senior Counsel and

the learned Special Government submitted that the bar

under Section 17A is not applicable in the present facts

and circumstances. The specific allegation is that the

members of the Director Board and the Secretary of the

co-operative society received bribe for appointing six

persons.

..11..

11. Section 17A of the Prevention of Corruption Act

reads thus:-

"17-A. Enquiry or Inquiry or investigation of

offences relatable to recommendations made or

decision taken by public servant in discharge of

official functions or duties.-

(1) No police officer shall conduct any enquiry or

inquiry or investigation into any offence alleged to have

been committed by a public servant under this Act,

where the alleged offence is relatable to any

recommendation made or decision taken by such public

servant in discharge of his official functions or duties,

without the previous approval-

(a) in the case of a person who is or was employed, at

the time when the offence was alleged to have been

committed, in connection with the affairs of the

Union, of that Government;

(b) in the case of a person who is or was employed, at

the time when the offence was alleged to have been

committed, in connection with the affairs of a

State, of that Government;

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competent to remove him from his office, at the

time when the offence was alleged to have been

committed:

PROVIDED that no such approval shall be necessary for

cases involving arrest of a person on the spot on the

charge of accepting or attempting to accept any undue

advantage for himself or for any other person:

PROVIDED further that the concerned authority shall

convey its decision under this Section within a period of

three months, which may, for reasons to be recorded in

writing by such authority, be extended by a further

period of one month."

12. Prior approval of the competent authority is

required when an enquiry into an offence alleged to have

been committed by a public servant where the alleged

offence is relatable to any recommendation made or

decision taken by such public servant in discharge of his

official functions or duties. This Court has considered the

scope of Section 17A in Shankarabhat and others v.

..13..

State of Kerala [2021 (5) KHC 248] and Venugopal and

others v. State of Kerala [2021 KHC Online 566]. In

Shankarabhat, this Court considered the question

whether the approval as provided in Section 17A is a pre-

requisite for every inquiry or enquiry or investigation into

every act done by public servant in discharge of his

official function. This Court after examining the scope of

Section 17A held that any commission of offence or

allegation of acts of public servant which is ex facia

criminal or constitute an offence or even demanding

illegal consideration will not fall within the scope of

Section 17A. This Court in Venugopal and others

(Supra) held thus:-

"27. The purpose behind the enactment of Section 17A of the Act is to give protection to public servants from the threat and ignominy of malicious and vexatious inquiry/investigation and likelihood of harassment for taking honest decisions. This provision aims to ensure that those public servants who have the responsibility to take vital decisions are not subjected to frivolous complaints and to make available a screening mechanism.

..14..

This purpose is fully achieved when a constitutional court takes decision with regard to the inquiry/investigation into an offence allegedly committed by a public servant. "

13. After analsying the facts of this case, this Court

is satisfied that an enquiry into the allegations levelled by

the petitioner is necessary. Therefore, the bar under

Section 17A would not come into play.

In the result, respondent No,2 is directed to conduct

an enquiry into the allegations levelled by the petitioner

and proceed in accordance with law. Respondent No.2

shall complete the enquiry within three months from this

day.

The Writ Petition is allowed as above.

Sd/-

K.BABU JUDGE

kkj

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APPENDIX OF WP(C) 36567/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 5TH RESPONDENT DATED 12/12/2022 Exhibit P2 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 6.01.2023 Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 30/12/2022 SUBMITTED BEFORE THE3RD RESPONDENT Exhibit P4 TRUE COPY OF THE PETITION DATED 30/12/2022 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P4(a) TRUE COPY OF THE POSTAL RECEIPT OF EXHIBIT P4 DATED 30-12-2022 Exhibit P5 TRUE COPY OF THE PETITION HAS SUBMITTED REPRESENTATION BEFORE THE 2ND RESPONDENT DATED 30.12.2022 Exhibit P6 TRUE COPY OF THE ORDER NO. C.R P(1)01/2023 ISSUED BY THE 3RD RESPONDENT DATED 19.08.2023 Exhibit P7 TRUE COPY OF THE ADMISSION TICKET DATED 26/08/2023 ISSUED TO THE PETITIONER