Fight against corruption became the buzz word of the present government with out looking at the basics of procedures that are followed to bring offenders to book. All the vigilance related issues are dealt by Home (Political) wing of Home Department of Govt. of Assam. It formulates the guidelines for vigilance enquiries by Vigilance and Anti Corruption organisation and CMs vigilance cell, though the later is under the control of CMO. Apart from the two organisations, all the police stations in Assam by virtue of Prevention of Corruption Act, 1988 are empowered to register and investigate cases of corruption, misappropriation of public funds etc.
Unlike many anti corruption organisations, neither the vigilance & anti corruption organisation nor the CMs vigilance cell in Assam has any statutory backing. They were neither formed through legislation nor does any legislation have mention about them.
These organisations took birth by virtue of certain executive orders. An ACB police station was declared in 1975 by the state government in exercise of its powers conferred under section 2(s) of Code of Criminal Procedure. By far it is the only legal entity that exists in the entire anti corruption mechanism of Assam Government.
According to Amit Goyal, Advocate of Guwahati High Court, A police station which is established by Code of Criminal Procedure shall follow the law laid in the same. There is no mention of any enquiry in Code of Criminal Procedure. Whenever a complaint is received alleging corruption or any misconduct to that effect, the same shall be registered, investigated and the competent court needs to dispose it. Despite the basic legal principles that necessitates that investigating authority and adjudicating authority can not be same, the Government of Assam framed an enquiry procedure through executive orders to enquire into complaints and decide the course of action, Said Mr Goyal.
Though the idea of an enquiry before registration appears to be valid and laid out with the good intention of protecting government servants from frivolous and malafide prosecution, the implementation of it took serious wrong path. The enquiry procedure became weapon of vendetta in the hands of some jealous bureaucrats in Home Department and some vengeful police officers.
As per the enquiry procedure laid out by state government as per OM dated 16th June, 2004, as and when a complaint is received, the authenticity of the complainant need to be verified followed by specificity of allegations. If the authority is satisfied with both of them, then shall order a discreet preliminary enquiry. Once the preliminary enquiry is completed and if there is issues to proceed with, then a regular enquiry can be initiated which includes an open enquiry followed by verification of assets and liabilities if need be. Only after following these steps scrupulously, a criminal proceeding can be initiated, said Advocate Amit Goyal.
The Government of Assam through subsequent circulars on 19th April, 2008 and 11th December, 2014 has modified the authorities who can approve these enquiries but the basic procedure remained same till date. On 15th November, 2017 another OM was issued in the name of Alok Kumar, Addl. Chief Secretary that before all the steps to commence, the complainant shall own up the compliant in writing.
Some authoritative bureaucrats and vengeful police officers tinkered these procedures to scuttle the career prospects of their colleagues. Most of the vigilance enquiries initiated since 2014 against senior IPS and IFS officers are based on anonymous and pseudonymous complaints. These complaints are used as handle to harm the reputations of these officers and thus to make them off the race.
Two of the IFS officers were PCCFs and the enquiries were initiated against them based on a sweeping complaint of a forest ranger who was dismissed from service by one of the PCCF and obviously that forest ranger used by some interested persons to damage the PCCF.
Vigilance enquiry was initiated against a successful police officer based on a complaint lodged 12 years ago and subsequently high court quashed the enquiry as malafide.
Another IPS officer faced a vigilance enquiry based on a pseudonymous complaint of misappropriation of Rs.3420 and after harassing the officer for two years and causing serious damage to reputation at the end the vigilance organisation itself declared that the complaint is lodged out of personal grudge.
On the other end some bureaucrats have mischievously interpreted judgements of supreme courts to their favour. The most famous judgement of Supreme Court viz. Lalita Kumari vs State of UP which provides for a preliminary enquiry before registration of case was misinterpreted by a powerful bureaucratic lobby and attempted to issue an order that no case shall be registered against them with out an enquiry. The lobby conveniently forgot that in the same judgement, it is also observed that an organisation which was not formed by any special legislation can not adopt any special procedures like enquiry.
But here, Assam’s vigilance and anti corruption organization and CMs vigilance cell with out impunity embarking on enquiries based on these executive orders, Said Amit Goyal.
According to experts, these executive orders related to enquiries are not followed sincerely. Some times the enquires do not have valid approvals and some times regular enquiries are initiated with out a preliminary enquiry. It is learnt that regular enquiries are initiated with out a preliminary enquiry to see that their colleague do not get vigilance clearance which is against the letter as well as spirit of OM dated 29th October, 2007 of Govt. of India.
One such regular enquiry initiated against Pranjit Das in the month of July 2016 was already suspended by Gauhati High Court.
Experts says that “As per the executive orders, these enquiries can be initiated against State Government Employee, But All India Services are as such not covered under these executive orders as they fall under Item 70 of Union List and the enquiry against one senior IFS officer is already stayed by Guwahati bench of CAT”.
The writer is a advocate of Guwahati High Court