Mohinder Singh Ors. vs State Th. Accountability Commission and ors

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(J&K) 24

JAMMU & KASHMIR HIGH COURT
Hasnain Massodi, J.
Mohinder Singh Ors. -Appellant
Versus
State Th.Accountability Commission and ors -Resopndent
OWP No. 727 of 2012 and OWP No. 804 of 2012 and OWP No. 242 of 2012, OWP No.804/2012, OWP No.242/2012, OWP No.956/2006, OWP No.902/2006, OWP No.72/2007, OWP No.94/2007, OWP No.64/2007
Decided On : 04-01-2013

Advocates Appeared:
Mr.S.K.Shukla, Advocate Mr. B.S. Salathia, Sr. Advocate with Mr. Ashish Sharma, Advocate Mr. D.C. Raina, Sr. Advocate with Mr. Anil Verma, Advocate Mr. U.K. Jalali, Sr. Advocate with Ms. Neha Bakshi, Advocate Mr. P.N. Raina, Sr. Advocate with Mr. J.A. Hamal, Advocate Mr. Abhinav Sharma, Advocate Mr. Virender Bhat, Advocate Mr. Ajay Sharma, Advocate
Mr.Gagan Basotra, Sr. AAG Mr. Sunil Sethi, Sr. Advocate with Ms.Veenu Gupta, Advocate Mr. S.S. Lehar, Sr. Advocate with Mr. S. Meharban Singh, Advocate Mr. D.S. Thakur, Sr. Advocate with Ms. Aruna Thakur, Advocate Mr.S.S. Ahmed, Advocate Mr. H.C. Jalmeria, Advocate

Headnote:
ACCOUNTABILITY COMMISSION - SUO MOTO POWER - [J&K ACCOUNTABILITY COMMISSION ACT, 2002] - The Accountability Commission does not have the power to suo moto order inquiry, investigation, or proceedings against a public functionary under the Act in the absence of a complaint.
Fact of the Case:

Multiple writ petitions were filed challenging the jurisdiction of the Accountability Commission to initiate suo-moto proceedings against public functionaries under the Jammu and Kashmir Accountability Commission Act, 2002. The Commission had initiated proceedings against the petitioners based on anonymous complaints or complaints lacking sufficient particulars.
Finding of the Court:

1. The Act and Rules made thereunder do not confer any power on the Commission to initiate suo-moto proceedings against a public functionary. 2. Regulation 9 of the Jammu and Kashmir Accountability Commission Regulations, 2005, which purports to provide for suo-moto actions, is ultra vires the Act. 3. The Commission cannot claim inherent powers to override the provisions of the Act or Rules. 4. The proceedings initiated against the petitioners based on anonymous complaints or insufficient particulars are without jurisdiction and are quashed. 5. The proceedings initiated against certain petitioners based on a proper complaint and subsequently expanded to include additional public functionaries under Section 27 of the Act are valid and can proceed.
Issues: 1. Whether the Accountability Commission has the power to suo-moto initiate inquiry, investigation, or proceedings against a public functionary under the Act? 2. Whether Regulation 9 of the Jammu and Kashmir Accountability Commission Regulations, 2005, is ultra vires the Act?
Ratio Decidendi: 1. The purpose of the Act is to establish a Commission to conduct investigations and inquiries in respect of complaints under the Act. The Act does not provide for suo-moto powers to the Commission. 2. Section 9(1) of the Act, which refers to the Commission's jurisdiction to investigate actions, is subject to the provisions of the Act, including Section 3, which outlines the purpose of the Commission's establishment. Therefore, Section 9(1) cannot be interpreted to confer suo-moto powers on the Commission. 3. Section 27 of the Act, which deals with the Commission's power to inquire into the conduct of persons, does not authorize the Commission to initiate suo-moto proceedings. It only allows the Commission to inquire into the conduct of persons during an ongoing inquiry initiated based on a complaint. 4. Regulation 9 of the Jammu and Kashmir Accountability Commission Regulations, 2005, which purports to provide for suo-moto actions, is beyond the scope of Section 31 of the Act, which empowers the Commission to make regulations for carrying out the purposes of the Act. The Commission cannot use its rule-making power to create a substantive right or remedy that is not available under the Act. 5. The Commission does not have inherent powers to override the provisions of the Act or Rules. Inherent powers are available to courts, not to statutory bodies like the Commission.
Final Decision: The writ petitions challenging the Commission's suo-moto proceedings are allowed, and the proceedings are quashed. However, the proceedings initiated against certain petitioners based on a proper complaint and subsequently expanded to include additional public functionaries under Section 27 of the Act are allowed to proceed.

1. Whether the Accountability Commission established under Jammu and Kashmir Accountability Commission Act, 2002, has power to suo-moto direct investigation, inquiry or proceedings against a public functionary under the Act, is the question that calls for an answer in the writ petitions on hand. In all the petitions, the Accountability Commission (hereinafter, the Commission) has suo-moto initiated proceedings under the Act against the petitioners.

2. Before an effort is made to find answer to the pivotal question on which fate of writ petitions on hand hinges, it would be appropriate to make a brief survey of background facts.

3. Shri Mohd. Shafi Indrabi filed a complaint being No.J- 115/2006 before Accountability Commission under Section 11 of the Act, against Smt. Sunali Kumar, Principal Secretary Health and Medical Education Department and Ranjit Kour, Ex- Principal/tutor of AMT School, Srinagar, alleging financial irregularities by the respondents while running affairs of AMT School, Srinagar and violation of rules in making admissions in AMT, School. The Commission on 3rd March 2006, on perusal of the complaint, record made available by the parties and after hearing counsel for the parties opined that the complaint disclosed a fit case in which regular inquiry was required to be conducted not only against the respondents but also against Smt. Suman Lata Bhagat Minister for Health and Medical Education present petitioner, Mr. Abdul Gani Sofi, Minister for Health and Medical Education, Shri Vikas Bhagat - PRO of Minister for Health and Medical Education, and Mst. Halima, Principal AMT, School, Srinagar successor in office of Smt. Ranjit Kour respondent in the complaint. The Commission, accordingly, arrayed Smt. Suman Lata Bhagat and three others as respondents 3 to 6 in the complaint and directed a notice to be issued to the newly added respondents. Smt. Suman Lata Bhagat petitioner- herein questions the jurisdiction of the Commission to take suo- moto action against the petitioner on the ground that the Commission does not have any such power and jurisdiction. Petitioner, accordingly, seeks quashment of order dated 3rd March, 2006, whereby she and three others were arrayed as respondents 3 to 6 and regular inquiry initiated against them.

4. The Commission received two anonymous complaints sometime in 2006, leveling allegations of corruption and acquisition of estate disproportionate to known source of income against Shri Satvir Gupta formal DIG Doda-Udhampur Range. The Commission on 6th December, 2006 entertained the complaint registered it as complaint No. J-54/2006 to Commissioner Vigilance to get the allegations secretly investigated through an officer not below the rank of IGP and submit the report at the earliest. Shri Gupta aggrieved with the order dated 6th December, 2006, seeks its quashment on the ground that Commission lacks jurisdiction to entertain the complaint. He also questions vires of Regulation 9 of Jammu and Kashmir Accountability Commission Regulations 2005.

5. The Commission on 10th March, 2006 received an anonymous complaint against Shri B. S. Dua MD Jammu and Kashmir Small Industries Development Corporation (SICOP) and other officers of the Corporation, alleging misappropriation of crores of rupees, backdoor appointments and use of private vehicles on payment owned by Mr. Dua in running affairs of the Corporation. The Commission entertained the complaint, registered it as complaint No. 617 dated 13th March, 2006 and amongst others issued notice to Shri R. L. Tikoo GM SICOP, Jammu, requiring him to appear in person and submit his comments in reply to the complaint on 8th December, 2006. Shri Tikoo aggrieved with the cognizance taken by the Commission on an anonymous complaint and issuance of notice dated 2nd December, 2006, has come up with a writ petition registered as OWP No. 94/2007. Mr. Tikoo questions jurisdiction of the Commission to entertain and proceed on an anonymous complaint and also question

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