B.S. Walia ORDER
Muzaffar Hussain Attar, J.
1. The core and fundamental issue involved in these Appeals is whether the Accountability Commission (for short Commission) is possessed of the power of initiating suo moto proceedings under the Jammu & Kashmir Accountability Commission Act, 2002 (for short Act of 2002).
2. Since the issue involved in these Appeals is common, they are, accordingly, being disposed of by this common judgment, excepting the lead case (LPA 15/2013).
3. These Appeals have arisen out of the judgment of the learned writ Court dated 04th January, 2013, passed in a batch of writ petitions, whereunder the power of the Commission, to initiate suo moto proceedings under the Act of 2002, was called in question.
4. The learned writ Court, vide aforesaid judgment, held regulation 9 of Jammu & Kashmir Accountability Commission Regulations, 2005 (for short Regulations of 2005) to be ultra vires the Act of 2002 and, accordingly, struck down the same. The learned writ court, in consequence of the aforesaid declaration, allowed OWPs 727/2012, 804/2012, 242/2012, 956/2006, 94/2007 & 64/2007. Learned writ Court, however, ruled that the proceedings initiated by the Commission against Smt. Suman Lata Bhagat and Vikas Behal alias Vikas Bhagat, who had challenged the proceedings initiated against them by the Commission in OWP 902/2006 and OWP 72/2007, to be competent and further provided that the proceedings against them will continue before the Commission. Learned writ Court disallowed the aforesaid writ petitions on the ground that the Commission had initiated the proceedings against the aforementioned persons on the basis of complaint filed by one Mohammad Shafi Andrabi, which, as per finding of the learned writ Court, was filed in accordance with the Act of 2002.
5. Mr. Pranav Kohli, learned counsel appearing for the Commission, argued at great length. He, in support of his contention that the Commission has suo moto power to initiate action against a public functionary, though referred to the preamble of the Act of 2002 and almost all the provisions of the Act of 2002, however, placed strong reliance on sections, 3, 9 & 12 of the Act of 2002 and regulation 9 of the Regulations of 2005. Learned counsel submitted that corruption, which has become potential threat for running the affairs of the State in accordance with laws, necessitated for legislating the Act of 2002. He placed heavy reliance upon section 9 of the Act of 2002 and submitted that the Commission has the power to investigate any action, which is taken by or with the general or specific approval of a public functionary defined in sub-section 16 of section 2 of the Act of 2002. Learned counsel also referred to sub-section 2 of section 9 of the Act of 2002 and submitted that under this provision, the Commission has been given power to enquire into any act or conduct of any person, other than a public functionary, in so far as it considers it necessary so to do for the purpose of enquiring into any such allegation. Learned counsel submitted that conjoint reading of the provisions of the Act of 2002 would show that the Commission has suo moto power to proceed against any public functionary in accordance with the mandate contained in the Act of 2002. Learned counsel submitted that regulation 9 of the Regulations of 2005 prescribe procedure to be followed when the Commission intends to take suo moto action. Mr. Kohli vehemently argued that the view taken by the learned writ court is not in consonance with the intent and purpose underlying the Act of 2002. He, in support of his contention, referred to and relied upon the judgements of Hon'ble the Supreme Court, reported in 2015 (9) SCC 2009, 2004 (8) SCC 682, MANU/SC/0619/2010 : 2010 (8) SCC 701, MANU/SC/0831/2010 : 2010 (12) SCC 599. He also referred to the decision of Kerala High Court rendered in WP(C) 5250/06 (Y), in case titled K.K. Ramchandran Master versus Kerala Lok Ayukhta - respondents. Learned counsel also referred to Kerala Lok Ayukhta Act 1999. He, accordingly, prayed for allowing of these Appeals and setting aside the judgment of the learned writ Court.
6. Mr. Jehangir Iqbal Ganai, learned Advocate General, appearing on behalf of the State of J&K, in unequivocal terms, submitted that the Commission has no power under the Act of 2002 to initiate suo moto proceedings against any public functionary. He submitted that the Commission is the creation of Statute, viz. the Act of 2002 and in view of the settled legal position, the Commission, a Statutory Authority, has to perform its functions in accordance with the parameters laid down by the Act of 2002. He further submitted that the Act of 2002 has not conferred power on the Commission to initiate suo moto proceedings against a public functionary. Mr. Ganai submitted that the power to initiate suo moto proceedings has not been conferred on the Commission to ensure that honest public functionary does not become victim of any vilification campaign against him launched by an unknown individual or a group of such persons. Learned counsel submitted that the Act of 2002 and the provisions made in Jammu & Kashmir Accountability Commission Rules, 2005 (for short Rules of 2005) prescribe stringent procedure for filing of a complaint and also provide for taking penal action in case a malicious/fraud complaint is filed against a public functionary. Learned counsel, in support of his contention, referred to sections, 9 & 11 of the Act of 2002 and regulation 9 of the Regulations 2005. Learned counsel also referred to and relied upon judgment of Hon'ble the Supreme Court, reported in MANU/SC/0728/2015 : 2015 (9) SCC 209, the judgment, upon which, Mr. Pranav Kohli, also relied.
7. M/s. U.K. Jalali, D.C. Raina, P.N. Raina & B.S. Salathia, learned Senior Counsel and Mr. Ajay Kumar, learned counsel, appearing for respondents in these Appeals, in their submissions, defended the judgment of the learned writ Court. Learned counsel argued at great length. They, besides arguing that the Commission, which is a creature of Statute, having been not conferred with the power of initiating suo moto proceedings against a public functionary further submitted that it can also not file these Appeals being not an aggrieved person. Learned counsel referred to the provisions of the Act of 2002, Rules and Regulations of 2005, to indicate that no power has been conferred by the Statute/Statutory Rules on the Commission to initiate suo moto proceedings against a public functionary. Learned counsel submitted that the Commission, by initiating suo moto proceedings, has assumed unto itself the power, which, in law, is not vested in it. Learned counsel further submitted that the legislature, which has enacted the Act of 2002, has not, even by implication, conferred power on its creature for initiating suo moto proceedings, thus, the creature cannot assume unto itself the jurisdiction not conferred upon it by the creator. Learned counsel submitted that regulation 9 of the Regulations of 2005 is ultra vires to the Act of 2002 and Rules of 2005 and the same has been, rightly, struck down by the learned writ Court. Learned counsel also submitted that initiation of action against a public functionary has to be commenced and regulated strictly in accordance with the provisions of the Act of 2002 and Rules of 2005, in as much as, safeguards have been prescribed and provisions have been made for initiation of penal action against a person, who files a frivolous complaint against a public functionary. Learned counsel submitted that such safeguards are not available in case of initiation of suo moto proceedings by the Commission. Learned counsel further submitted that initiation of proceedings against a public functionary on the basis of press reports or on anonymous complaints which, ultimately, may turn out to be false and frivolous, will have a tremendous adverse impact on the public life of a public functionary. Learned counsel submitted that in order to avoid such a situation to arise, the legislators, in their wisdom, have prescribed safeguards against filing of frivolous and false complaints against public functionaries. Learned counsel, while referring to provisions of the Act of 2002, submitted that format is prescribed for filing of a complaint and the complainant, besides identifying himself in the complaint, has to file an Affidavit. Learned counsel further submitted that in the event the complaint is found to be false, the complainant can be subjected to penal action by the Commission.
8. Learned counsel submitted that jurisdiction of Commission to initiate action in terms of section 9 of Act of 2002 is conditional and is circumscribed by other provisions, more particularly, section 11 thereof. Learned counsel submitted that the Commission can initiate action only when complaint is filed in terms of section 11.
9. In addition, Mr. Salathia, learned senior Counsel, also referred to a Circular No. 3(V)/99/2 issued by the Central Vigilance Commission, the subject matter of which is "improving vigilance administration-no action to be taken on anonymous/pseudonymous petitions/complaints" and submitted that even the Central Vigilance Commission hardly takes cognizance of anonymous/pseudonymous complaints as initiating action on such type of complaints has an adverse effect on the person complained against. Learned counsel, in support of their contentions, referred to and relied upon the following judgements:
MANU/SC/0728/2015 : 2015 (9) SCC 209, MANU/DE/0021/1979 : AIR 1979 Delhi 249, 210 (10) SCC 744, MANU/SC/0831/2010 : 2010 (12) SCC 599, MANU/MH/0129/1967 : AIR 1967 Bombay 472, MANU/SC/0336/1970 : AIR 1971 SC 517, MANU/SC/0092/2003 : 2003 (3) SCC 321, MANU/SC/0511/2012 : 2012 (7) SCC 200, MANU/SC/0921/2004 : AIR 2005 SC 69, AIR 1967 SC 1245, MANU/SC/0349/1964 : AIR 1965 SC 1103, AIR 1988 SC 300, 2013 (1) JKJ-1, MANU/SC/0488/2001 : 2001 (8) SCC 397, 2000 (2) SCC 538, MANU/SC/0023/2015 : 2015 (4) SCC 33, MANU/JK/0085/2005 : 2005 (3) JKJ 363, MANU/SC/0427/2011 : 2011 (6) SCC 739, MANU/SC/0197/2013 : 2013 (14) SCC 696, MANU/SC/0690/2010 : 2010 (10) SCC 744, MANU/SC/0831/2010 : 2010 (12) SCC 599, MANU/SC/0728/2015 : 2015 (9) SCC 209, MANU/SC/0921/2004 : AIR 2005 SC 69, MANU/SC/0336/1970 : AIR 1971 SC 517 and MANU/MH/0129/1967 : AIR 1967 Bombay 472.
10. Learned counsel for the respondents, accordingly prayed for dismissal of these Appeals.
11. Before dealing with the submissions made at the bar by learned counsel for the parties, the purpose for enacting the Act of 2002 & sections 3, 4, 7, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 29 & 31 of the Act of 2002 & rule 5, 6 & 8 of the Rules of 2005 and regulation 9 of the Regulations of 2005 are taken note of:
"Jammu and Kashmir Accountability
Commission Act of 2002
Object
The main object enacting this Act is to provide a just, responsive and clean administration. It was felt that there must be some institution which may enquire into the allegations and grievances against public men and persons holding civil posts in the State at all levels.
2. Definitions
In this Act, unless the context otherwise requires:-
(1)"Accountability Commission" means the institution established under section 3;
(2)"action" means action taken by way of decision, recommendation or finding or in any other manner and includes failure to act and all other expressions connoting action shall be construed accordingly;
(3) "allegations" in relation to a public functionary includes any affirmation that such public functionary in his capacity as such-
(a) is guilty of corruption, favoritism, nepotism or lack of integrity;
(b) was actuated in the discharge of his functions by personal interest or improper or corrupt motive;
(c) has abused or misused his position to obtain any gain or favour to himself or to any other person to cause loss or undue harm or hardship to any other person;
(d) Has failed to act in accordance with the norms of integrity and conduct which ought to be followed by the public, functionaries of the class to which he belongs; or
(e) or any person on his behalf is in possession or has at any time during the period of his office been in possession, for which the public functionary cannot satisfactory account, of pecuniary resources or property disproportionate to his known sources of income.
(4) "Chairperson" means the Chairperson of the Accountability Commission appointed under clause (a) of sub-section (2) of section 3;
(5) "Chief Minister" means the Chief Minister of the State;
(6) "Competent Authority" in relation to a public functionary means the Governor of the State.
(7) "corruption", includes anything made punishable as such under Chapter IX of the Jammu and Kashmir State Ranbir Penal Code, Samvat, 1989, or under the Jammu and Kashmir Prevention of Corruption Act, Samvat 2006 or any other Law in force;
(8) "Governor" means the Governor of the State;
(11) "Member" means a member of the Accountability Commission appointed under clause (b) of sub-section (2) of section 3;
(12) "Minister" means a member (other than the Chief Minister) of the Council of Ministers and includes a Deputy Chief Minister, a Minister of State and a Deputy Minister or Advisor to Government/Chief Minister;
(13) "Notification" means a notification published in the Government Gazette and the expression "notified" shall be construed accordingly;
(15) "prescribed" means prescribed by rules made under this Act;
(16) "Public functionary" means a person who is or was at any time-
(i) the Chief Minister or a Minister;
(ii) the Speaker or Deputy Speaker of the State Legislative Assembly;
(iii) the Chairman or Deputy Chairman of the State Legislative Council;
(iv) a Member of the State Legislature;
(v) Advisor to Governor;
(vi) Advisor including the Political Advisor to Chief Minister or the Government;
(vii) given the status of a Minister or Minister of State by the Government in connection with the discharge of his official functions;
(viii) appointed by the Government as Chairman (other than a Government servant of any statutory corporation or autonomous board.
Explanation:-For purposes of this clause the term "Minister" includes a Minister of State and a Deputy Minister.
(17) "State" means the State of Jammu and Kashmir.
3. Establishment of Accountability Commission
(1) As from the commencement of this Act, there shall be established, for the purpose of conducting investigations and inquiries in respect of complaints under this Act, an institution to be called the "Accountability Commission".
(2) The Accountability Commission shall consists of-,
(a) a Chairperson who has been a Judge of the Supreme Court or Judge of any High Court; and
(b) such other Members, if any, as may be prescribed:
Provided that a person shall not be qualified for being appointed as a Member unless he has been a Judge of the High Court.
(3) The Chairperson and every other Member shall, before entering upon his office, make and subscribe before the Governor or any other person nominated in this behalf by him, an oath or affirmation in the form set in the Schedule.
(4) A vacancy occurring in the institution of Accountability Commission shall be filled in as soon as possible.
4. Appointment of Chairperson and Members
The Chairperson and Members, if any, shall be appointed by the Governor by warrant under his hand and seal:
Provided that every appointment under this section shall be made after obtaining the recommendations of a Committee consisting of-
Provided further in case, there is no Leader of Opposition in the Legislative Assembly, the Leader of the single largest group or party in opposition to the Government shall be deemed to be a Member of the Committee.
7. Removal of Chairperson or Members
(1) The Chairperson or a Member of the Accountability Commission shall not be removed from his office except by an order made by the Governor passed after an address by the Legislative Assembly supported by a majority of total membership of the House and by a majority of not less than 2/3rd of the Members present and voting, has been presented to the Governor in the same session for such removal on the ground or proved misbehavior or incapacity.
(2) Before passing a Resolution to address the Governor under sub-section (1), the Speaker of the Legislative Assembly shall constitute a committee comprising of a person who has been a Judge of the Supreme Court or Judge of any High Court and the Law Minister of the State and the Committee shall inform the Chairperson or the Member of the commission of the charges leveled against him and afford him a proper and adequate opportunity of being heard before submitting the report to the Speaker of the Legislative Assembly.
9. Jurisdiction of Accountability Commission
(1) Subject to the provisions of this Act, the Accountability Commission may investigate any action which is taken by or with the general or specific approval of a public functionary as defined in clause (16) of section 2:
Provided that the Accountability Commission shall not inquire into any matter involved in or arising from, or connected with any such allegation against the Chief Minister in so far as it is in the interest of the security of the State and/or maintenance of public order.
(2) The Accountability Commission may inquire into any act or conduct of any person other than a public functionary in so far as it considers it necessary so to do for the purpose of its inquiry into any such allegations:
Provided that the Accountability Commission shall give such person a reasonable opportunity of being heard and to produce evidence in his defence.
(3) No matter in respect of which a complaint may be made under this Act shall be referred for inquiry under the Jammu and Kashmir Commission of Inquiry Act, 1962.
10. Matters not subject to jurisdiction of Accountability Commission
(1) The Accountability Commission shall not inquire into any matter concerning any person if the Chairperson or any Member has any bias in respect of such matter or person and if any dispute arises in this behalf the Governor shall, or an application made by the party aggrieved obtain, in such manner as may be prescribed, the opinion of the Chief Justice of the High Court of Jammu and Kashmir and decide the dispute in conformity with such opinion.
(2) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Accountability Commission to question any administrative action involving, the exercise of a discretion except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded, as having been improperly exercised.
11. Provisions relating to complaints
(1) Subject to the provisions of this Act, a complaint may be made under this Act, to the Accountability Commission; by any person, by a person aggrieved.
(2) Every complaint shall be made in such form and in such manner and shall be accompanied by such affidavit as may be prescribed.
(3) The contents of the complaint shall not be made public till its scrutiny by the Accountability Commission under Section 12.
12. Preliminary scrutiny of complaints by Accountability Commission
(1) If the Accountability Commission is satisfied, after considering a complaint and after making such verification as it deems appropriate that the complaint is manifestly false and vexatious, the Accountability Commission shall dismiss the complaint after recording its reasons therefor and communicate the same to the complainant and to the competent authority.
(2) The procedure for verification in respect of a complaint, under sub-section (1) shall be such as the Accountability Commission deems appropriate in the circumstances of the case and in particular, the Accountability Commission may, if it deems it necessary so to do, call for the comments of the public functionary concerned.
13. Procedure in respect of inquiries
(1) The concerned public functionary shall present his defence within a period of two months and the competent authority may furnish its comments, if any within the period of one month from the date of the receipt of the copy of the complaint from the Accountability Commission. In case no comments or reply is received within the time specified, it shall be presumed that neither the public functionary nor the competent authority contradict the allegations made in the complaint.
(2) Every inquiry shall be conducted by the Chairperson and the Members, if any, sitting jointly and the place in which such inquiry is conducted shall be deemed to be an open court to which the public generally may have access so far as the same can conveniently contain them:
Provided that in exceptional circumstances and for reasons to be recorded in writing, such inquiry may be conducted in camera.
(3) The Accountability Commission shall hold every such inquiry as expeditiously as possible and in any case complete the inquiry within a period of six months from the date of receipt of the complaint:
Provided that the Accountability Commission may, for reasons to be recorded in writing, complete the inquiry within a further period of six months.
(4) Save as aforesaid, the procedure for conducting any such inquiry shall as the Accountability Commission considers appropriate in the circumstances of the case.
16. Interim recommendations
If during the course of preliminary inquiry or investigation under this Act, the Accountability Commission is prima facie that allegation against any action or decision is likely to be substantiated either wholly or partly, it may, by a report in writing recommend to the public functionary to stay the implementation or enforcement of the decision or action complained against or to take such mandatory or preventive action on such terms and conditions, as it may specify, in its report.
17. Power of inspection
The Accountability Commission or any officer authorized by it shall have the power to inspect any office of the Government, local authority, corruption, Government company or society of section 2 in connection with preliminary inquiry or investigation of any complaint involving or an allegation under this Act.
18. Secrecy of preliminary inquiry or investigation
Every preliminary inquiry or investigation under this Act shall be conducted in private and in particular, the identity of the complainant and the public functionary affected by the preliminary inquiry or investigation shall not be made public during such enquiry or investigation.
19. Secrecy of information
(1) Any information obtained by the Accountability Commission or its staff or any other officer, person or agency in the course of or for the purpose of any preliminary inquiry or any investigation under this Act, and any evidence recorded or collected in relation to such information shall be treated as confidential and notwithstanding anything contained in the Evidence Act, Samvat 1977, no court shall be entitled to compel the Accountability Commission or any such officer, person or agency or any public functionary to give evidence relating to such information or to produce the evidence so recorded or collected.
(2) Nothing in sub-section (1) shall apply to the disclosure of such information or evidence,-
(a) for the purpose of any report to be made under this Act; or for the purposes of any action or proceedings to be taken on such report; or
(b) for the purpose of any proceedings, for an offence under the State Official Secrets Act, Samvat 1977, or for an offence of giving or fabricating false evidence under section 193 of the Jammu and Kashmir State Ranbir Panel Code, Samvat 1989, or for the purpose of trial of any offence under section 20 or section 23;
(c) for such other purpose as may be prescribed.
20. Power to punish for contempt
(1) The Accountability Commission shall have and exercise the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has, and, for this purpose, the provisions of the Jammu and Kashmir Contempt of Courts Act, 1997, shall have effect subject to the modification that the references therein to High Court shall be construed as including a reference to the Accountability Commission.
(2) The Accountability Commission shall be deemed to be Court within the meaning of Jammu and Kashmir Contempt of Courts Act, 1997.
21. Reports of Accountability Commission
(1) After the conclusion of inquiry under section 13 the Accountability Commission shall determine whether all or any of the allegations made in the complaint have or has been proved to its satisfaction and by report in writing shall communicate its findings to the complainant, the public functionary and the competent authority and such report shall be published in the Government Gazette besides other manners and modes as may be deemed fit by the Accountability Commission.
(2) The Accountability Commission shall in its report recommend to the competent authority that injustice or hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.
(3) The competent authority shall examine the report forwarded to it under sub-section (1) and take such action as it may deem fit on receipt of the report.
(4) The competent authority shall communicate to the Accountability Commission within a period of 90 days from the date of receipt of report the action taken or proposed to be taken on the recommendations.
(5) Notwithstanding anything to the contrary contained in any other law for the time being in force-
(a) If any sanction is required under any law for taking cognizance of any case or for initiating any proceedings against any public functionary on the basis of the report of the Accountability Commission, the sanctioning authority shall take a decision within a period of three months from the date a copy of the report is received from the competent authority for such sanction and in the event of its failure to take a decision within the said period, it would be deemed that the sanction has been accorded and same shall be sufficient for taking cognizance of the case or initiation of such proceedings:
(b) Where a Court of competent jurisdiction finds that any public functionary has acquired any property, moveable or immoveable, or other assets illegally or through illegal means, such property or assets shall stand confiscated to the State free form all encumbrances and without any compensation to be utilized for a public purpose.
22. International insult or interruption to Accountability Commission
(1) Whoever intentionally offers any insult, or causes any interruption, to the Accountability Commission while the Accountability Commission or any of its Members is making any verification or conducting any inquiry under this Act, shall be punished with simple imprisonment for a term which may extend to six months, or with fine, or with both.
(2) The provisions of section 198-B of the Code of Criminal Procedure, Samvat 1989, shall apply in relation to an offence referred to in sub-section (1) as they apply in relation to an offence referred to in section 198 of the said Code, subject to the modification that no complaint in respect of such offence shall be made by the Public Prosecutor except with the previous sanction of the Accountability Commission.
23. Powers of Accountability Commission to try certain offences
(1) When any such offence as is described in sub-section (1) of section 22 is committed in the view of presence of the Accountability Commission, the Accountability Commission may cause the offender to be detained in custody and may, at any time on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, try such offender summarily, so far as may be, in accordance with the procedure specified for summary trials under the Code of Criminal Procedure, Samvat, 1989, and sentence him to simple imprisonment for a term which may extend to six months, or with fine or with both.
(2) In every case tried under this section, the Accountability Commission shall record the facts constituting the offence with the statement, if any, made by the offender as well as the finding and the sentence.
(3) Any person convicted on a trial held under this section may appeal to the High Court which shall be heard and decided by a Division Bench of the High Court.
(4) The provisions of this section shall have effect notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989.
24. Penalty for mala fide complaint
(1) Every person who makes any complaint which he knows or has reason to believe that the same is false, frivolous or vexatious upon finding to that effect recorded by the Accountability Commission shall be punishable as provided in sub-section (2).
(2) When any offence under sub-section (1) is committed, the Accountability Commission may take cognizance of the offence and after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily, so far as may be, in accordance with the procedure specified for summary trials under the Code of Criminal Procedure, Samvat 1989, and if such offender is found guilty of committing the offence, sentence him to imprisonment for a term which shall not be less than one year but which may extend to three years and also to fine which may extend to fifty thousand rupees and may also award where fine is imposed, out of the amount of the fine, to the public functionary against whom such false complaint has been made, such amount of compensation as the Accountability Commission thinks fit:
Provided that this shall not debar the public functionary to pursue any other remedy or relief under any law against the complaint.
29. Power to delegate
The Accountability Commission may, by general or special order in writing, and subject to such conditions and limitations as may be specified therein, delegate to any person referred to in sub-section 26, any power which does not involve its discretion or its judicial or quasi-judicial functions under the Act.
31. Power of Accountability Commission to make Regulations
(1) The Accountability Commission may, by notification, make such regulations as it may deem necessary for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the maters, namely:
(a) holding of sittings of the Accountability Commission;
(b) holding of sittings of the Accountability Commission at other than the place of ordinary sittings;
(c) procedure which may be followed by the Accountability commission for conducting proceedings including inquiry and investigation;
(d) forms in which complaints may be made and the affidavits which may accompany such complaint and the fees if any which may be charged in respect thereof;
(e) such forms and notices as may be necessary in the opinion of the Chairperson of the Accountability Commission for carrying out the inquiry and investigation."
"Jammu and Kashmir Accountability Commission Rules, 2005
5. Form and contents of the complaint
(1) Every complaint shall be made as far as possible in Form A? prescribed in the Schedule duly signed and supported by an affidavit as prescribed by rule 6.
(2) The complaint regarding allegations and grievances may be presented before such officer as may be notified by the Secretary in consultation with the Chairperson.
(3) The complaint may be presented in person or sent by registered post. Such complaint shall be provisionally registered/entered in separate Register, maintained by the Registry at Jammu and Srinagar.
(4) Every complaint shall be accompanied by three copies for the Commission and such other numbers of copies as the Public functionaries complained of are.
6. Contents of affidavit
(1) Every affidavit shall be drawn up clearly and legibly. It shall be sworn in before a Judicial Magistrate, an Executive Magistrate, Notary public or before any Gazetted officer duly authorized to administer oath.
(2) Every person making an affidavit shall state his full name, surname, age, profession or trade and place of residence and shall give such other particulars as will make it possible to identify or locate him clearly.
(3) Every affidavit shall conclude as follows:
I do hereby swear in the name of God/Solemnly affirm__________________that this is my name and signature/thumb-impression___________________and that the contents of this affidavit are true. I further swear that what is stated in the paragraph (give number) is true to my information and is believed by me to be true.
8. Scrutiny and registration of regular complaints
(1) On receipt of the complaint the Registrar shall examine the complaint, affidavit and accompanied documents and report as to whether it has been filed in accordance with the Act and the rules.
(2) If the Registrar is of the opinion that the complaint is not in conformity with the provisions of the Act or the rules or is otherwise defective, he shall issue notice to the complainant in Form 'B' to remove the defects within the specified period stipulated in the notice. The Registrar may extend the time specified in the notice for sufficient cause.
(3) When the complainant is directed to remove the defects within the specified period stipulated in the notice and if the defects are not removed within such time or extended time, the complaint may be dismissed or default of the complainant by orders of the Commission.
(4) All the complaints shall be placed before the Commission for appropriate orders. However, the complaints regarding which the complainant has been directed to remove the defects shall be placed only after the expiry of the period of time stipulated in the notice or the extended period.
(5) Every person making the complaint shall be informed of the substance of the orders passed under the preceding rule, if no further action on the complaint is to be taken. "
"Jammu and Kashmir Accountability Commission Regulations, 2005
9 Procedure in suo moto actions
In cases where the Commission intends to take suo moto action, the substance of the allegations shall be examined by the Registrar of the Commission and reported to the Commission. After examining the report of the Registrar, the Commission may decide to issue process for investigation of the allegations in the same manner prescribed for inquiry and investigation of the allegations in the same manner prescribed for inquiry and investigation with respect to the complaints. In all such matters, the Public Prosecutor shall assist the Commission."
12. The Court, in one of the judgements, has highlighted the lethal effect, which the corruption has on the society. Paragraphs 18 to 21 of the decision rendered in case titled Mohammad Amin Beigh versus State of J & K and others, reported in SLJ 2012 (IV) 1182, are taken note of:
"18. The court is not oblivious of the fact that providing such kind of projections and facilitates depend upon the economic strength of the State. The India is a rich country. Its material resources are immense. When the material resources of the State will be taken care of and dealt with honestly, it would definitely ensure that no person in this country would die because of hunger. The Constitution when followed honestly and in right-earnest will bring back the prosperity to all section of the society, which otherwise, now we find only in the pages of history.
19. The insatiable human greed has caused irreparable damage to the economic and moral fabric of the society. The unbridled desires of an individual when ride rough shod, create imbalance in the society.
20. The greatest challenge to the body politic is from hydra-headed monster of corruption. The menace of corruption has corroded the basic human values. It has created neo-rich class in the society. Corrupt people are papa sites who swell themselves by sucking blood of the poorest of poor. The society gets destabilized by abominable corrupt practices indulged in to by black sheep in the society. Major portion of the public funds are siphoned off into coffers of few corrupt people and this in turn has potential of breaking down the economic back bone of the Nation. Corruption is the greatest threat to the democratic institutions. Corrupt practices of small band of people inflict untold and unbearable miseries on the poor and down trodden class of the society. Corruption if unchecked will eventually lead to anarchy in the society.
21. To ward off all evil effects of corruption, lawful rule is imperative. It is seen and is of common knowledge that corrupt people throng power centers and with the passage of time take control of them. Of all impending challenges faced by the society, corruption is the serious one. Corruption is mother of all evils. Earning tons of money, amassing huge health at the cost of the poor, is a beastly instinct. The malice of corruption has afflicted the every organ of the society. The experience has shown that corrupt people survive because of active support they get from the people who are put in important positions of trust. The corruption has engulfed the society like wild fire. The corruption has potential of destroying all the democratic institutions. The monster of corruption if not taken head-on, will in the near future convert the society governed by rule of law into the society governed by rule of Jungle. Those, who are holding the possession of trust for public good, if would continue to facilitate the corrupt activities, in the near future will themselves get consumed as the monster of corruption will not spare them also."
13. Similarly the Court, in case titled Viom Networks Limited versus State of J & K, reported in MANU/JK/0008/2012 : AIR 2013 J & K 93 has further highlighted the adverse impact of unaccounted for and uncontrolled money power on the society. Paragraphs 23, 24 and 26 of the said judgment are taken note of:
"23. Our country is possessed of immense human and material/natural resources. 'We the people' are masters and have to be beneficiaries of these natural resources. The occupation of this country by external rulers has drained it of most of its material/natural resources. This country which has history of thousands of years, at the mid night, when it was declared to be free and independent country, inherited body politic which was suffering from many maladies. The subjugation of centuries had reduced a vast majority if its population to abject poverty. The external aggressors and rules has ruthlessly exploited the material/natural resources of this rich country. The majority of the population at the dawn of freedom of the country was very poor and it was very difficult for them to make both ends meet. The Constitution makers who were great visionaries, in order to bridge the huge yawning gap between poor and the rich and in order to ensure that the basic necessities of life become affordable to every citizen of this country, made solemn declaration to secure justice, social economic and political to its citizens.
24. For variety of reasons, a section of population got captured to an advantageous position and the vast majority suffered all kinds of deprivations. The class of people who were and are on the right side of the advantages, went on flexing their economic muscles to make huge money/economic empires. The already deprived class of the society became victim of actions of their own people. The people in democratic society like ours are sovereign and all types of resources which are available in this country, thus, are property of people of this country. The people of this country are Masters of all natural/material resources. A group of people because of their advantageous position and even capacities and abilities exploited these material/natural resources which are owned by the people of this country and have consequently build great money/economic empires. The Government which represents the will of the people in our Constitutional Scheme is deemed to be in control of all the material/natural resources available in this country. These material/natural resources are to be utilized in a manner by the State and its authorities which will ensure in achieving the goal of securing social and economic justice as enshrined in the preamble of this Constitution to all its citizens. The class of the people who have become affluent and rich have definitely right to retain the fruits of their labour but in a manner which suits our Constitution designed and engineered by its architects to create a Socialist State. The constitutional bodies and constitutional authorities owe a duty to the people of this country to unveil humanist ideology of the Constitution of which preamble is repository and its vivid colours are painted strikingly by the constitutional painters in Art. 38 and 39 thereof. The justice which is social and economic in all its contours will be achieved only when it is ensured that every individual of this country gets the basic necessities of life and the void between haves and have nots does not become unbridgeable. An exercise is to be undertaken to level down and up two classes of the society so as to ensure that Clement Italy's Prophecy "if a free society cannot help the many who are poor rich" does not become true. The soul of our Constitution is socialist in nature. Pt. Jawahar Lal Nehru said, "I see no way of ending poverty, the degradation and the subjection and Indian people except through socialism".
26. The issue is to be looked at from another stand point as well. In our constitutional scheme representatives of the people ultimately from the Government and are answerable to the people in accordance with the mandate of Constitution of India and laws made thereunder Government are accountable and answerable for their every act to the people of the country. In contradistinction thereto, those who wield money or economic power are not answerable and accountable in the like manner. In the recent times value system has completely changed. The money power has taken control of almost all other public institutions. In present times people can be grouped by and large into two main cases viz. 'human beings' and 'commercial beings'. The events have unfolded and unveiled the ugly facts and facets which have shown that money power is affecting the political power of the State. The State has to wake up and respond to these ringing alarms by making laws which would effectively control the money power/economic power and make it answerable and accountable. The unbridled economic power has potential to destabilize checks and breaks are not put on the people will become poor and proper. The people who suffer at the cruel hands of the deprivation, it is seen are, either committing suicide or joining outlawed groups. The State has to distribute the natural resources for overall good of society. The State in order to secure the constitutional goal of having a socialist society has to necessarily having absolute control on the natural resources of this country."
14. A bare look on the provisions of the act of 2002 and Rules of 2005 would show that neither the legislature nor the Rule Making Authority has, apparently, conferred any specific power on the Commission for initiation of suo moto proceedings against a public functionary.
15. In view of the arguments advanced at bar by learned counsel for the respondents, in the ordinary course of things, these Appeals apparently may not succeed. However, an issue of great public importance involved in these Appeals, does call for an in depth look into the Act of 2002 and Rules & Regulations of 2005.
16. The penal laws in the shape of Prevention of Corruption Act Svt. 2006, Ranbir Penal Code Svt 1989 (1932 A.D) to deal with the omissions and commissions of the Government servants/public functionaries, are already in existence. In terms of the Code of Criminal Procedure, police stations have been constituted for the purpose of lodging of complaints and/or initiation of investigations in respect of alleged commission of offences. These police stations are manned by the police officers of various ranks. Existence of penal laws and of institutions/mechanism for dealing with the corruption, has not measured upto the expectations, which impelled the State Government to enact a law for arresting the further deterioration in the functioning of the public functionaries as defined in terms of section 2(16) of the Act of 2002. These public functionaries include a person, who is or was at any time the Chief Minister or a Minister of the State, Speaker or Deputy Speaker of the State Legislative Assembly, Chairman or Deputy Chairman of State Legislative Council, a member of State Legislature, Advisor to Governor, Advisor including the Political Advisor to Chief Minister of the Government, given the status of Minister or Minister of State by the Government in connection with discharge of his official functions as Chairman (other than a Government servant) of a Statutory Corporation or Autonomous Board. The Minister would also include Minister of State and a Deputy Minister.
17. In terms of original Act of 2002, the officers appointed to civil and public posts in connection with running the affairs of the State would also come within the jurisdiction of the Commission. However, after amendment of the Act of 2002, which came into force with effect from 19th January, 2011, the civil servants have been taken out of the jurisdiction of the Commission.
18. A human being is a superior creation of the Creator. A human being in itself constitutes a complete universe. The forces of virtue and vice are always at work and play within the universe of a human being. In order to put human being on the right track and to ensure that he treads the right path and does not stray and follow the evil path, nature has created an accountability mechanism within the human being, otherwise called conscience. This natural force keeps on constantly telling the human being which is right and which is wrong path and further relentlessly reminds him that treading the right path will make his this world and hereafter better for him. Since a human being is part of the society, his following the true principles of life are essential for better living of other human beings. In every society, which includes a democratic society also, the conduct of an individual is regulated by some laws and norms. These laws are natural as well as man made. The accountability mechanism, which nature has created in every human being, constantly keeps on telling him to follow the prescribed laws and norms. Straying from the right path, not only makes an individual to suffer himself but also makes the whole society victim of his breaching the prescribed laws and norms. The societies, which includes democratic societies, governed by rule of law, does prescribe laws and create institutions for regulating the conduct and behavior of the human beings.
19. The creation of Accountability Commission, through legislative process, is an essential component of having a society, which in true sense is governed by rule of law. The State Legislature has brought within the purview of the Act of 2002, the political executive, which include the Chief Minister and the Ministers. The actions of these authorities and the allegations made, as defined in section 2 sub sections (2) & (3) of the Act of 2002, would require to be investigated by the persons of high caliber. The Legislators, in their wisdom, while establishing the Accountability Commission, have provided that it shall consist of a Chairperson, who has been a Judge of the Supreme Court or Judge of any High Court and such other members, as may be prescribed and the person for being appointed as a member has to be Judge of the High court. The Chairperson and the members, before entering into the offices, are required to make and subscribe before the Hon'ble Governor or any person nominated in this behalf by him an oath or affirmation in the form set out in the Schedule. The Chairperson and the members, if any, are to be appointed by the Governor by warrant under his hand and seal in terms of section 4 of the Act of 2002. Such appointment, however, is to be made after obtaining recommendations of the Committee consisting of:
20. The Accountability Commission as is established in terms of section 3 of the Act of 2002, thus, would comprise of the person, who has been Judge of the Supreme Court or of the High court. In other words, the Accountability commission would comprise of the persons, who have held the constitutional posts.
21. In contradistinction to the Act of 2002, the State Legislature, in order to deal with the civil servants, has, by a legislative enactment, constituted State Vigilance Commission in terms of the Jammu & Kashmir State Vigilance Act, 2011. The Vigilance Commission comprises of sitting or retired bureaucrats/civil servants.
22. The persons, who are charged with the onerous and responsible duty of investigating or enquiring into the actions and/or allegations against the public functionary under the Act of 2002, have to have held the constitutional posts of not less than Judge of the Supreme Court or that of the High Court. The persons, in respect of whom allegations are made and actions are to be taken, are equally the persons, who have held or are holding the constitutional posts.
23. This effort of drawing parallels is being made in this decision to give real meaning to the purpose and object sought to be achieved under the Act of 2002. The constitutional Courts' functions cannot be circumscribed by the statutory limitations. The Constitution has created different wings of the State. The three wings of the State are Executive, Legislature and Judiciary. These three organs of the State have to function within the delineated boundaries. The Legislature has to enact laws, which are to be implemented by the Executive Wing of the State and the constitutional Court is the principal interpreter of these laws. Amongst others, one of the fundamental duties of the constitutional Courts is to chisel the Statutes to achieve the real purpose underlying them. The constitutional Courts, in the process of interpretation of Statutes, are duty bound to unfold the purpose underlying the said Act, unveil its real intentions and paint it in its true colors and while doing so, the Courts have not either to add or subtract words from the Statute.
24. In view of the aforesaid discussion, a question of legal and fundamental constitutional importance, comes to fore; why to establish Accountability Commission and why to legislate laws for establishing it.
25. Corruption corrupts the core human values. It denudes a human being of humanistic ideals. It transforms the human being, a superior creature, into a monster. It is a slow speed tsunami, which slowly but gradually destroys not only the basic human values, viz. truth, justice and honesty but also the democratic institutions, which are otherwise created for protecting and preserving these great human values.
26. The people, who hold the high or low offices of trust, by dabbling in corrupt practices, subject large section of population to untold miseries by denying them the basic necessities, required for their bare survival. The effect of practicing corruption by some people, deprive others of their right to have food, shelter and opportunity of leading life as human beings. The creator has provided unbounded material resources, which are sufficient to enable every individual human being to live his life with dignity and honor. But, alas, unfortunately the insatiable greed of a few amongst us, have, by indulging in corrupt practices, disturbed the equilibrium of the society. The changes, effected by the evil human endeavor on the natural equilibrium, will have catastrophic impact on the societies.
27. Corruption begets injustice. Injustice is incarnation of corruption in its worst form. Corruption produces an unjust society. Human history bears witness to the fact that all unjust societies, howsoever powerful they were, got destroyed.
28. In a democratic society like ours, which is governed by rule of law, providing of clean administration is sine quo non for the moral, material and spiritual development of an individual.
29. For running its affairs, a democratic society makes laws, which are more or less in consonance with the natural laws and creates institutions for giving effect to such laws. Laws are made and institutions are created for over all benefit of an individual/society.
30. It is said that no virtue is absolute, nor even freedom. As is said and is a known fact that when in the womb of mother, the foetus remains tied to the umbilical cord and when born, a human being remains tied by societal norms.
31. The purpose of providing clean administration is the dominant intention of the legislature in enacting the Act of 2002. By enacting the Act of 2002, on one hand, a public functionary has been put on notice to conduct his affairs in accordance with law of the land, and on the other hand, provisions have been made to ensure that false, motivated and vexatious complaints are not filed against him. This balancing act of the legislature has to be maintained and protected at all costs.
32. It takes a person years of hard work, devotion, commitment and honesty to catapult himself on the high pedestal of life, where he stands in high esteem and is held in respect by members of the society. Every person, who holds important position of trust, has to make huge sacrifices at his personal and family life to earn respect of the society. This virtue, earned by an individual through life wrenching effort, however, can be dented/damaged by leveling false and frivolous allegations against him. A false allegation can, undoubtedly, not only denude a person of the respect earned by him through his good deeds but can have potential of sealing his future also. It would be like an unchaste woman accumulating heaps of false accusations at the door of a saint.
33. But in order to achieve higher goals of life and for over all benefit of the society, Socrates drank cup of hemlock, Christ had to bear the cross and Mahatma Gandhi fell to the bullets of assassin.
34. Reverting to the Act of 2002, what emerges is that the institution has been created for cleansing public administration. This institution, set up in terms of section 3 of the Act of 2002, can initiate proceedings when a complaint in accordance with mandate contained in section 11 of the Act of 2002 is filed before it. The jurisdiction to deal with the complaints is delineated by section 9 of the Act of 2002.
35. In terms of aforementioned provisions, only a complaint, filed in the prescribed manner and proforma, can set into motion the Commission.
36. In achieving the holistic laudable purpose of providing clean public administration, can it be said that the legislature inhibited initiation of proceedings and commencement of investigation only on the basis of a complaint filed in the prescribed manner and not otherwise.
37. For arriving at the lawful conclusion, following proportions of law would require to be answered:
a. What is the legal status of the Accountability Commission;
b. Can the purpose of legislature be achieved by restricting initiation of proceedings and conduct of investigation and/or enquiry only on a complaint filed in prescribed manner.
The reply to proportion (a) has to be as under:
"The Accountability Commission has been constituted by Statute to accomplish the ultimate societal good of having a corruption free society. To achieve the said legislative purpose, the persons, who have held the highest constitutional posts as Judges of Supreme Court and High Court have been designated to be Chairperson/Members thereof. The Chairperson/Members can be removed from their offices by an order made by the Governor after an address by the Legislative Assembly supported by a total membership of the House and by a majority of not less than 2/3 of the members present and voting, has been presented to the Governor in the same session. The process and procedure of removal is almost akin to the process/procedure of removal of a Supreme Court and High Court Judge. A Government servant or even a statutory authority has no such safeguard available to his tenure. Selection of the Chairperson/Members by a Committee comprising of the persons holding constitutional posts and the safeguard to the tenure is almost similar to that available to the Judge of Supreme court and High Court. This legal position, thus, elevates the position of the Accountability Commission higher than that of a mere statutory body, notwithstanding the fact that it is created by Statute. The Accountability Commission is, thus, not a mere statutory body, but is a superior authority and, in essence, resembles a constitutional authority. The Accountability Commission, in legal sense, wears constitutional complexion and radiates constitutional flavor. Though it has to act in accordance with the Statute, but its functioning cannot be circumscribed or limited by the Statute, in view of above recorded reasons. The Commission cannot be denied the power to initiate suo moto action for achieving the purpose of considerable public importance.
b The legislative intentment and purpose underlying the Act of 2002, would be rather defeated than being achieved, in case it is accepted that the Accountability Commission can proceed to investigate or enquire only on the basis of a complaint made to it in terms of section 11 of the Act of 2002. A citizen of high moral value and fortitude, in exceptional and rare cases, can dare to lock horns with the most powerful people at the helm of affairs. It needs only to be visualized as to how many complaints can be filed. The restricted interpretation would rather defeat the legislative purpose of having clean administration. The whistle blowers, in different parts of the country, had to pay the ultimate price of their lives for unveiling the powerful people indulging in naked corruption by abusing their positions. In these circumstances, it remains only to be imagined as to how many complaints would be filed before the Commission.
The Accountability Commission, in such circumstances, will be reduced to a mere ornamental institution. It will be reduced to a piece of decoration only.
38. The Statutes are to be interpreted for securing public good, as it is only for this reason that laws are enacted. Interpretation of a Statute cannot, by superficial reading thereof, provide a proper solution. For proper interpretation of the Statute, one has to delve deep in it to ascertain its real purpose and has to provide legal aura to it, which makes it purposeful and meaningful. Visualize a situation that a person is on the beach of a sea. His eye sight can only travel a particular distance. At the end of this distance, he finds the blue sky meeting the blue sea. For him, this is the end of the world on that side of the sea. But when the same person sets on voyage of the same sea in the same direction, then with every inch of oaring forward, his meeting point of sky and sea will equally get extended. What was the end of the world for him while sitting on the beach, becomes only a milestone of knowing the vast universe of the creator. In the same fashion, law cannot be interpreted by merely looking to its form alone. The true and correct interpretation will surface only when efforts are made to unveil its substance. By this process of interpretation, the Accountability Commission is held to be not a mere statutory authority but a superior authority akin to a constitutional authority. And by this reasoning, the Accountability Commission can, in law, initiate suo moto proceedings, notwithstanding this fact that no such power is conferred on it by the Act of 2002.
39. Already, in this judgment, the purpose of enacting the Act of 2002 has been briefly summarized. To further add to it, the purpose is to keep the functions of the highest constitutional authorities in the State within the bounds of law and to provide an institution to the citizens of the State for highlighting their just and lawful grievances/complaints in respect of actions of the public functionaries, which are the constitutional authorities and also in respect of the allegations made against them. The creation of the Accountability Commission, in the aforesaid backdrop, is to ensure that these high constitutional authorities follow the high standards in public life and set standards for others by following the laws of land in discharge of their official functions.
40. Since the public functionaries, as defined in section 2(16) of the Act of 2002, survive in public life on the basis of public perception, in order to ensure that their public image is not damaged by filing of false complaints or leveling false allegations, the Legislators have made stringent provisions for taking of stringent action against the person, who files false complaint or levels false allegation against a public functionary. The provisions of the Act of 2002 are sufficient to deter a person from leveling false allegation or filing false complaint against a public functionary.
41. True it is that public functionaries, as defined in the Act of 2002, hold their respective positions/offices as trustees of people and they reach to such positions on the basis of the work they have discharged in their public life. Anything said against a public functionary, as defined in the Act of 2002, in the print or electronic media or by sending anonymous/pseudonymous complaints, in the backdrop of the establishment of Commission, whether will have damaging impact on their public image or on their person, would further require to be answered. In terms of section 11(3) of the Act of 2002, when a complaint is made under the Act to the Commission by any person or by a person aggrieved, the Commission is duty bound not to make public its contents till its scrutiny is made in terms of section 12 thereof. Section 12 of the Act of 2002 prescribes for conducting preliminary scrutiny of the complaints by the Commission. sub-section 1 of section 12 of the Act of 2002 prescribes that after considering a complaint and after making such verification as it deems appropriate and after entering into satisfaction that the complaint is manifestly false and vexatious, the Commission is duty bound to dismiss the complaint after recording its reasons therefor. The decision is to be communicated to the complainant as also to the competent authority. sub-section 2 of section 12 of the Act of 2002, prescribes procedure for verification in respect of a complaint and further provides that the procedure for verification would be such as the Commission deems appropriate under the circumstances of the case. This statutory safeguard, in respect of filing of a complaint under the Act of 2002, has to be followed by the Commission with religious zeal. It is only in case the complaint is not dismissed in terms of section 12 of the Act of 2002 that enquiry is to be initiated by the Commission in accordance with the provisions of the Act of 2002, more particularly, section 13 thereof.
42. What appears from the aforesaid statutory prescription is that after entertaining a complaint under the Act of 2002, a preliminary enquiry has to be conducted by the Commission and the contents of the complaint are not to be made public till its scrutiny in terms of section 12 of the Act of 2002 is done and the proceedings of preliminary scrutiny as prescribed by section 12 of the Act of 2002 has also to remain a guarded secret. Same procedure is to be followed when suo moto proceedings are initiated.
43. In the normal process of interpretation of Statutes, when an authority is created by the Statute through a legislative process, which legislative process does not bring into existence the constitutional authority, in such circumstances, the statutory authority cannot assume unto itself any power, authority or jurisdiction, which is not conferred upon it by the Statute itself. But the same thing cannot be said in respect of the authority/Commission created by a Statute, which authority/Commission is to be manned in terms of the same Statute only by a person, who has held the constitutional post of a Judge of Supreme Court or of the High court. The legislative intention by confining the occupation of the post of Chairperson/Member of the Commission by only a person, who has held the higher constitutional post of Judge of the Supreme Court and/or that of the High Court, would make it distinct and different than such an authority/Commission, which is to be manned by an Executive or Statutory authority.
44. Looking at this legal position from yet another stand point, one can reach to same conclusion, in as much as, the Chairperson and the members of the Commission as already stated, are to be appointed by the Hon'ble Governor on the recommendations of the Committee comprising high constitutional authorities, viz. Chief Minister, Speaker of Legislative Assembly, Chief Justice of the High Court, Law Minister and leader of Legislative Assembly. This high ranking constitutional body is reposing trust, in making recommendations for their appointment, in the persons, who have held the constitutional posts. The Chairperson and the member of the Commission cannot be equated to any other authority, which the Statute creates or may create. In view of the composition of Selection Committee and the position held by the appointing authority, as also the constitutional position held by the Chairperson and members before their appointment to the Commission, the position of the Commission does not become that of a mere statutory Commission but its position is heightened and enhanced to a different and distinct level than that of a statutory body. As already stated, the Commission, in the aforesaid position, though created by the Statute, is more than a statutory body and findings about the same have been recorded at paragraph (37) of this judgment. In this factual and legal situation, the Commission would be deemed, in law, to possess the power, authority and jurisdiction to initiate suo moto proceedings. The Act of 2002 is not an ordinary legislation. It is a legislation, which has to accomplish and fulfill the dream of millions of people to have a corrupt free society.
45. The apprehension projected by the learned Advocate General and learned senior counsel about the abuse of provisions of Act of 2002 by sending anonymous/pseudonymous complaints or initiating proceedings on the basis of press reports cannot be a ground to deny the power of initiation of suo moto proceedings to the Commission, in as much as, the Chairperson/Members of the Commission are those persons, who have held the highest constitutional posts and in their appointment, confidence has been reposed in them by the constitutional authorities of the State, who constitute the Selection Committee and by not less than Hon'ble Governor, who is the highest constitutional authority in the State.
46. The above discussion does lead to a legal conclusion that the Commission is an authority catapulted to a position higher than that of a statutory authority and, as declared at paragraph (37) supra, is possessed of the power of initiating suo moto proceedings. The regulation 9 of Regulations of 2005 only provides for procedure to be followed, which is same that is to be followed in respect of the complaints in terms of section 11 of the Act of 2002. All the safeguards, thus, prescribed by the Statute will, ip so facto, apply to the proceedings initiated suo moto by the Commission. Thus, in such circumstances also it shall not have to disclose the contents of the anonymous/pseudonymous complaint or make it known to the public as to which press report has been taken cognizance of for conducting of preliminary enquiry. Regulation 9 of the Regulations of 2005, which prescribes for following the procedure, in itself, did not confer any power to initiate suo moto proceedings on the Commission but the Commission, as already stated, is possessed of such power, for the reasons recorded hereinabove. Striking down of regulation 9 of the Regulations of 2005 by the learned writ Court has not denuded the Commission of its power of suo moto initiation of proceedings against a public functionary and that power is still intact.
47. The statement of objects and reasons for establishing the institution of Accountability Commission has been stated to provide clean administration in the State at all levels. This laudable purpose can be achieved in the manner delineated in this decision.
48. In the aforementioned backdrop, the objection raised by learned counsel for respondents about maintainability of the Appeals, in view of the above discussion, pales into insignificance. The Appellant - Commission is definitely aggrieved of the judgment impugned in these Appeals.
49. For our above recorded reasons, we allow the Appeals filed by the J&K State Accountability Commission. The judgment(s), impugned therein, are set aside. Consequently, writ petitions stand dismissed along with connected IAs.
50. Before parting with, it, however, needs a mention that Mr. Abhinav Sharma, learned counsel appearing for Appellant in LPA 15/2013, submitted that this case is different from rest of the Appeals. He further submitted that the arguments in this case were not heard and, accordingly, prayed for listing of this Appeal separately.
51. Prayer allowed. Registry to segregate the lead case - LPA 15/2013 and list it separately.
© Manupatra Information Solutions Pvt. Ltd.