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Madhya Pradesh High Court · body

2016 DIGILAW 613 (MP)

Kirti Kumar Gupta v. State of M. P.

2016-07-26

J.K.MAHESHWARI

body2016
ORDER : J.K. Maheshwari, J. This petition under Article 226 of the Constitution of India has been filed seeking writ in the nature of mandamus against the respondents for giving protection to the petitioner under The Whistle Blowers Protection Act, 2011 declaring him as the Whistle Blower and to quash the impugned orders. The command has also been sought against the respondents not to harass the petitioner for exposing the corruption and such other relief, may deem fit in the facts of the case. 2. It is not in dispute, at the time of commission of the incident, the petitioner was posted as District Labour Officer, Chhatarpur. It is also not in dispute that the petitioner submitted a complaint regarding the financial irregularities in the matter of disbursement of scholarship. It is also not disputed that under the instructions of the Collector, petitioner submitted a complaint to Police Station Civil Lines, Chhatarpur whereupon the FIR was registered. It is also not in dispute that a Public Interest Litigation bearing W.P. No. 4287/2015 was filed before this Court wherein directions were sought to initiate disciplinary action and conduct proper investigation in the matter of financial irregularities committed by petitioner in the matter of disbursement of scholarship under the schemes known as "Shiksha Protsahan Rashi Yojna" and "Medhavi Chhatra Chhatraon Ko Nagad Puraskar Yojna". It is also not in dispute that the State Government has issued Policies prescribing the procedure for disbursement of the amount under both the schemes, which is required to be followed. It is also not in dispute, while considering the anticipatory bail applications bearing Nos. M.Cr.C. 3986/2015 and 4200/2015 of the co-accused persons namely Pawan Prakash Khare, Rajendra Saxena and Indresh Babu Kushwaha on 22.4.2015, this Court found that in disbursement of the Govt. money under Shiksha Protsahan Rashi and Medhavi Chhatraon Ko Puraskar Yojna, were made without following the procedure prescribed misappropriating the same, therefore, directions were issued, which are reproduced as under :- 1. As per the scheme of the Government to grant financial assistance under "Shiksha Protsahan Rashi Yojna" and "Medhavi Chhatra Chhatraon Ko Nagad Puraskar Yojna", how many schools have applied for such grant in the State of Madhya Pradesh to which the amount is released. 2. As per the scheme of the Government to grant financial assistance under "Shiksha Protsahan Rashi Yojna" and "Medhavi Chhatra Chhatraon Ko Nagad Puraskar Yojna", how many schools have applied for such grant in the State of Madhya Pradesh to which the amount is released. 2. The demand made by the school concerned is as per the procedure prescribed in the scheme and it is processed in accordance with procedure issuing cheques to them, or it is misutilized alike in Chhatarpur district. 3. If it is found that the procedure has not been duly followed and it is merely the irregularity, which is not amounting to commission of an offence then the police officials may recommend the matter for taking a departmental action against delinquent officers but if in investigation, it is found that it is amounting to commission of an offence then appropriate action be taken registering an offence against erring persons for breach of trust and of committing forgery. 4. On perusal of the present case, it appears that the demand was made for "Shiksha Protsahan Rashi Yojna" and "Medhavi Chhatra Chhatraon Ko Nagad Puraskar Yojna" from Government Higher Secondary School, Hatwara and Maharani Laxmi Bai Kanya Uchchatar Madhyamik Vidyalaya, Chhatarpur, but along with the demand verification of registration of the workers and other relevant documents after perusal of the original were not made and no such material is available in the investigation. In this regard, who are at fault and whether their act is amounting to irregularity or commission of the offence, is to be examined. 5. On submitting the said demand, the labour officer and its official staff have followed the procedure prescribed in accepting the said recommendation and delivered the cheques to the right persons extending benefit of scheme or breach of trust and forgery is committed by them having connivance with the school staff. 6. It is further to be examined that as per the guidelines, the cheques have been duly issued and delivered to the institution or students concerned. If some fault is found then the person responsible for it ought to be dealt with in accordance with law as observed herein above. 7. 6. It is further to be examined that as per the guidelines, the cheques have been duly issued and delivered to the institution or students concerned. If some fault is found then the person responsible for it ought to be dealt with in accordance with law as observed herein above. 7. It is seen that the cheques were issued in the name of two institutions but cheques have been delivered by hand to Kailash and Mukesh merely knowing to them by applicant Indresh Babu Kushwaha in M.Cr.C. No. 3986/2015, which is not permissible under the scheme, however, the responsibility of the erring persons be determined and they ought to be dealt with in accordance with law. 8. It is further to be seen that those cheques have not been encashed in the regular accounts of the aforesaid two institutions but the cheques have been encashed in the accounts of Sadbhavna Nagrik Sahkari Bank, which is not in the name of the institutions then how such encashment has been made, also requires a deeper probe in a similar manner and fashion as directed herein above. 9. It is further to be examined that after commencement of the scheme in the year 2004, account No. 710/9 and account No. 1190/21 have been opened in Sadbhavna Nagrik Sahkari Bank in 2006 not in the name of the institution and number of cheques have been transacted in the said account whether it is a part of racket to withdraw the Govt. money through it be utilised by the needy or poor persons, and if anyone is found involved therein then he/she/they should be dealt with in accordance with law as directed above. 10. As per the instructions of Shri A.P. Singh, Advocate, the labour officer, who is the complainant in the case, has lodged the first information report. He came to be posted there in June, 2012. However, during his period as well as prior to the said period and after commencement of the scheme, how many cheques were issued by him and processed by his office and the said amount has been delivered to the appropriate institution or in the right hand, be also examined by them and if anyone is found at fault, he/she/they should be dealt with in accordance with law. It is relevant to point out here that on account of initiating the criminal action in furtherance to the aforesaid direction, writ petition No. 4287/2015 (PIL) was disposed of by this Court on 1.9.2015 holding that the criminal action against respondent No. 7 (petitioner herein) has already been initiated, however, with respect to departmental action, the Court observed as under:- 4. We are of the considered view that once the Police Authority have already initiated criminal action against the respondent No. 7, now if any consequent action is to be taken, it is for the Disciplinary Authority to consider the question and take departmental action in accordance with the terms and conditions of the service and the discipline and appeal rules with regard to conduct of the respondent No. 7 in discharge of his official duty and it is the discretion of the disciplinary authority to take action in accordance with rules in case so advised. For the same, we see no reason to issue any Mandamus at the instance of the petitioner. Accordingly, granting liberty to respondent No. 1 and 2 to proceed departmentally in the light of the circumstance which have come on record and permitting them to exercising their discretion in accordance with law in the matter of taking disciplinary action, we dispose of the writ petition as no further directions are required in the light of the action already initiated by the Police authority. 5. It is also pointed by Shri A.P.Singh, that respondent No. 7 himself is the complainant and it is at his instance that Crime No. 2/2015 has been registered by the Police of Police Station Civil Lines, Chhatarpur. For the present, it is not necessary for us to go into all these aspects. It is for the competent authority to look into various aspects in the matter and proceed in accordance to law. 6. With the aforesaid, this petition stands disposed off. 3. On issuing the said directions, investigation was conducted under the supervision of the Superintendent of Police, Chhatarpur wherein it was found that with effect from the date of posting of petitioner i.e. June, 2012 till lodging the FIR without following the procedure as prescribed in schemes, petitioner himself has issued various cheques disbursing the amount under both the schemes in the name of institutions, one of them is not in existence. In fact as per scheme, the amount ought to be disbursed in the accounts of beneficiaries; thus, Govt. money has been misutilized and misappropriated and the real beneficiaries (students) could not realise the benefit. In the said sequel of fact, petitioner himself has been made accused in the police case. The application (M.Cr.C. No. 13791/2015) seeking anticipatory bail filed by petitioner has been rejected by this Court vide order dated 23.2.2016. Thus, in view of the aforementioned facts and circumstances, the issue regarding declaration of petitioner as the Whistle Blower requires consideration. 4. The Central Government has promulgated the legislation known as The Whistle Blowers Protection Act, 2011 (hereinafter referred to as the Act of 2011) with an object to provide a mechanism, on receiving the complaint relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimisation of the persons making such complaint. Section 3(b) defines 'Competent Authority' to whom the complaint or disclosure can be made. Section 3(c) defines 'complainant' to mean that any person who makes a complaint relating to disclosure under this Act. Section 3(d) defines 'disclosure' to mean that the complaint made relating to an attempt or commission of offence under Prevention of Corruption Act; wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable wrongful gain accrues to the public servant or to any third party; attempt to commit or commission of a criminal offence by a public servant, in writing or by electronics mail or electronic mail message, against the public servant and includes public interest disclosure. 5. Section 4(2) of the Act of 2011 makes it clear that any disclosure made under this Act shall be treated as public interest disclosure for the purposes of this Act and shall be made before the Competent Authority and the complaint making the disclosure shall, on behalf of the Competent authority be received by such authority as may be specified by the regulations made by the Competent Authority. In Section 4(3) it has also been clarified that disclosure should be made in good faith and the person making disclosure shall make a personal declaration stating that he has reasonable believe that the information disclosed by him and allegation contained therein is substantially true. If the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure and on finding it incorrect or the identity is found incorrect or false, the action is not required to be taken. Section 5 specifies the powers and functions of Competent authority on receipt of public interest disclosure. Competent Authority for disclosure of the facts would be State Vigilance Commission or any officer of the State Government or any other authority as the State Government may by notification in the official gazette specify in this behalf under this Act. Section 6 specifies the matters which are not to be inquired by Competent Authority. Section 7 specifies the powers of the Competent Authority, how to collect further information and what procedure ought to be followed. Section 8 clarifies the matters to be exempted from disclosure. Section 9 confers power of superintendence to the Competent Authority over appropriate machinery. Section 10 gives powers to the Competent Authority to take assistance of the police authority in certain cases. 6. Section 11 of the Act provides safeguards against victimization, which is relevant for the purpose of the relief sought in this case. As specified, it is the duty of the Government to ensure that any person or public servant, who made disclosure under the Act, should not be victimised by initiating the proceedings or on the ground that such person or public servant had made a disclosure or rendered assistance in inquiry of any disclosure under this Act. It has also been made clear that if such person is being victimised or likely to be victimised on the ground that he filed a complaint or made a disclosure or rendered assistance in inquiry under this Act, however on filing an application before the Competent Authority seeking redressal, such authority shall take such action as may be deemed fit and may give suitable direction to the concerned public servant or public authority to protect such person from victimisation or avoid of being victimized. As per proviso, the Competent Authority prior to giving direction to the public authority or public servant shall given an opportunity of hearing to the complainant and the public authority or public servant. The second proviso makes it clear that burden of proof that the action on the part of the authority is not amounting to victimisation shall lie on such authority. Thus, after hearing if any direction is issued by the competent authority, it would be binding. As per Section 12, similar protection has been provided to the witnesses and other persons rendering assistance in inquiry. In addition, the protection of identity of the complainant has also been specified in the Act. The violation of any provision of the Act would amount to commission of offence to which the penalty has also been specified as per Sections 15, 16, 17, 18 and 19 of the Act. Thus, the act of 2011 is the complete code to deal with the complaint or to provide protection to whistle blower. 7. On perusal of the aforesaid and looking to the spirit of the Act, it is clear that on making any disclosure or disclosure in public interest or any complaint under this Act, the Competent Authority shall make an inquiry in relation to the said disclosure exercising the power and following the procedure as prescribed under Section 7 of the Act but the disclosure must be in good faith and along with declaration of the disclosure stating that he has reason to believe that information supplied is substantially true. It further clarifies that the persons who is making the disclosure or a complainant and also the witnesses and other persons incidental to the said complaint or disclosure, are being victimised or likely to be victimised because he has filed complaint or made disclosure or rendering assistance in inquiry, on receiving such application by competent authority, after affording an opportunity of hearing to the public servant, appropriate direction may be issued to Public servant or Public authority to protect from being victimised or avoid his victimization. 8. Thus, in the facts of the present case, it is to be seen whether the relief as claimed by the petitioner may be allowed declaring him to be the Whistle Blower. As per discussion to the provisions of The Act of 2011 made herein above, the facts of the present case are required to be analysed. 8. Thus, in the facts of the present case, it is to be seen whether the relief as claimed by the petitioner may be allowed declaring him to be the Whistle Blower. As per discussion to the provisions of The Act of 2011 made herein above, the facts of the present case are required to be analysed. In the present case, indeed it is true that a memorandum was submitted by the petitioner to the Collector on 18.12.2014 complaining the action of the subordinate staff in the matter of disbursement of the scholarship to the Principal, Government Uchchatar Madhyamik Vidyalaya, Hatwara, Chhatarpur and Government Maharani Lakshmi Bai Kanya Uchchatar Madhyamik Vidyalaya, Chhatarpur. He has also submitted the same complaint to the SHO, Police Station Civil Lines, Chhatarpur with a copy to Superintendent of Police, Labour Commissioner and other authorities. On the basis of said complaint, the FIR was registered on 3.1.2015 by the P.S. Civil Lines, Chhatarpur. With a view to find the bonafides of petitioner, on registering the offence, during investigation Pawan Prakash Khare, Rajendra Saxena, Indresh Babu Kushwaha, Narendra Chourasia, Ram Prakash Sharma, Manoj Sahu, Brajesh Gupta, Kaurav Pathak and Atmaram Pandey were found in collusion with the petitioner, in the matter of disbursement of the scholarship to the institution. The State Government in its return has clarified that the scheme in relation to distribution of scholarship to the children of registered labour was pronounced under the provisions of the Building And Other Constructions Workers (Regulation of Requirement of Condition of Service) Act, 1996 and the rules made for this purpose by the State Government namely M.P. Building and other Constructions Workers (Regulation of Employment and of Condition of Service) Rules, 2000. The Government promulgated a scheme known as "Madhya Pradesh Bhawan Evam Anya Sannirman Karmkar Ke Bachcho Ke liye Shiksha Hetu Protsahan Rashi Yojna, 2004", which was notified on 10.7.2008 as "Shiksha Hetu Protsahan Rashi Yojna". The said scheme was formulated specifying the eligibility, procedure to submit application, authority to grant and procedure for sanction and its disbursement. It is further submitted that after making the complaint by the petitioner, an enquiry was conducted by the Collector, District Chhatapur by a committee comprising of the Chief Executive Officer, Jila Panchayat, District Treasury Officer and Accounts Officer of the District Panchayat. It is further submitted that after making the complaint by the petitioner, an enquiry was conducted by the Collector, District Chhatapur by a committee comprising of the Chief Executive Officer, Jila Panchayat, District Treasury Officer and Accounts Officer of the District Panchayat. In the said report, it was found that the petitioner posted as the Labour Officer, Chhatarpur and competent to issue cheques, has not verified the contents of the demand made by the institutions and without following the procedure, issued the cheques signed by him, to one Kailash and Mukesh, who were not having any authority to receive those cheques. In fact the amount of Protsahan Rashi under the scheme ought to be transacted directly in the accounts of the beneficiaries (students) and the cheques should not be given to the Institution heads. It is required to observe while considering the anticipatory bail application of Rajendra Saxena and Indresh Babu Kushwaha, this Court issued certain directions (which are quoted herein above in Para-2). After such direction, during investigation Police found involvement of petitioner in commission of the offence prior to the date of registration of the FIR and has not surrendered to the custody, however declared abscond, to which reward of Rs. 5,000/- was notified as per proclamation dated 27.7.2015. After such proclamation this petition has been filed on 29.7.2015. In the report dated 14.9.2015 submitted by the SHO to the Additional S.P., the commission of offence by petitioner has been reported taking action under Section 82 of the Cr.P.C. The petitioner filed the application seeking anticipatory bail (M.Cr.C. No.13791/2015), which has also been dismissed vide order dated 23.3.2016. In the rejoinder filed by petitioner challenge to the enquiry report of three members' committee explaining his conduct has been set forth inter alia contending that he is not at all involved in disbursement of the amount of Shiksha Protsahan Rashi Yojna and Medhavi Chhatra Chhatraon Ko Nagad Puraskar Yojna but he is unable to dispute the factum of issuing of cheques in favour of institutions contrary to the procedure prescribed in the schemes, though one of the school was not in existence. However, in the said sequel of facts and in the context to the object and spirit of the Act of 2011 as discussed, petitioner cannot be treated to be the Whistle Blower giving protection and safeguards under Section 11 of the Act. 9. However, in the said sequel of facts and in the context to the object and spirit of the Act of 2011 as discussed, petitioner cannot be treated to be the Whistle Blower giving protection and safeguards under Section 11 of the Act. 9. In view of the foregoing and on analysing the provisions of the Act of 2011, it remained undisputed that petitioner has joined as Labour Officer, Chhatarpur on 25.6.2012 and issued more than 40 cheques signed by him under Shiksha Protsahan Rashi Yojna and Medhavi Chhatra Chhatraon Ko Nagad Puraskar Yojna during the period 18.7.2012 till 20.10.2014 without having proper vigil and observing the procedure prescribed in the schemes to grant scholarship to the students. It is to be noted here that the amount so disbursed through the cheques, were signed by the petitioner and the said amount has not been received by the beneficiaries and those cheques were transacted in the forged or inactive accounts with the connivance of the management of the school and also the bank officers without following the procedure prescribed in the schemes. However, in the said context, it cannot be accepted that disclosure made by petitioner was under the Act of 2011 or in good faith, along with the declaration making him entitled to the benefit of Section 11 of the Act of 2011. It is to be observed here that the protection of Section 11 is available only to those persons who has acted bonafidely in good faith with intent to save the misutilization of Government money and such disclosure was in public interest with a declaration that he has reason to believe on it. It is to further observe that such protection is not available to the person, who himself is hand in glove with the other staff members and to save his own skin with lack of bonafides applied for protection. In addition to the aforesaid in Public Interest Litigation, the Division Bench of this Court has observed that as criminal action has already been initiated against the petitioner, however, if any consequent disciplinary action is to be taken, it is with disciplinary authority to consider and to take departmental action in accordance with the terms and conditions of the service. In addition to the aforesaid in Public Interest Litigation, the Division Bench of this Court has observed that as criminal action has already been initiated against the petitioner, however, if any consequent disciplinary action is to be taken, it is with disciplinary authority to consider and to take departmental action in accordance with the terms and conditions of the service. In the present case, on registration of the offence, petitioner himself was found involved in commission of the offence and the departmental authorities have also directed to take action, however, this Court has reason to believe that action taken by the petitioner is not under the Act of 2011 and not in good faith but with lack of bona fide, however, not entitled to seek protection under Section 11 of the Act of 2011 or to declare him whistle blower. 10. In view of the foregoing discussion, in my considered opinion, the petition filed by the petitioner seeking protection of Section 11 of the Act of 2011 is based on lack of bonafides and on frivolous grounds, therefore, dismissed being devoid of merit with cost.