Mohinder Verma
JAMMU, Aug 23: In a significant development, the Government has submitted before the High Court that State Accountability Commission (SAC) has no inherent/plenary powers or jurisdiction to suo-moto issue process to or take any action against any “public functionary”.
As soon as the hearing commenced in the Court of Justice Hasnain Massodi, Senior Additional Advocate General, Gagan Basotra submitted that Additional Secretary, General Administration Department, Feroz Ahmed Sheikh has filed detailed reply of the Government vis-à-vis suo-moto powers of SAC, in OWP titled Peerzada Mohd Sayeed Versus Accountability Commission.
In the meantime, Senior Advocate D S Thakur, while supplementing the arguments of Senior Advocate Sunil Sethi on behalf of SAC, justified the suo-moto power of the Commission. He also referred few judgments of the Apex Court in support of his submissions.
On the other hand, Senior Advocates U K Jalali, D C Raina and P N Raina made submissions with regard to Commission having no power to initiate suo-moto action. Advocate S K Shukla also made submissions against the suo-moto power of the Commission. In view of paucity of time, Justice Hasnain Massodi kept the matter on-board for tomorrow.
As per the reply filed by the Government, the copy of which is in the possession of EXCELSIOR, the State Legislature enacted the Jammu and Kashmir Accountability Commission Act, 2002 with the sole purpose of establishing an institution of Accountability Commission to enquire into grievances and allegations against public functionaries.
“The Act demonstrates the policy and intention towards eradication of corruption from the public life. It Act also provides for constitution of State Accountability Commission and the constitutional mechanism in this behalf also provides elaborate and comprehensive procedure for achieving the desired objectives which also include delegation of power for carrying out the objectives”, the State submitted.
“The Commission is a statutory body created and regulated by the Act and it derives its powers from the express provisions of the Act alone. There is no provision in the Act, which confers any jurisdiction on the Commission to suo-moto issue process to or take any action against any public functionary”, the Government said, adding “Commission is not vested with any plenary/inherent powers or jurisdiction under law and in the absence of any specific power or jurisdiction emanating from the express language of the J&K SAC Act or of any other law, the Commission cannot take suo-moto action”.
Drawing the attention of the High Court towards Section 9 of the Act, which specifically prescribes the nature and scope of Commission’s jurisdiction, the Government said, “the jurisdiction of SAC as specified in Section 9 of the Act has been made subject to the other provisions of the Act. As a result, in the absence of a complaint from any person, as envisaged under Section 10, 11, 12 and 13 of the Act, the Act doesn’t authorize the Commission to suo-moto issue process to or take any action against public functionary”, adding “it is settled principle of law that if the manner of doing a particular act is prescribed under a Statute, then such act must be done in that manner, or not at all”.
Mentioning that such jurisdiction has not been conferred on the Commission even by way of framing of Regulation 9 of the Jammu and Kashmir Accountability Commission Regulations, 2005, the Government submitted that Section 31 of the Act also doesn’t authorize Commission to frame any Regulation so as to confer any specific jurisdiction on the Commission when no such jurisdiction is envisaged or conferred by the Act.
“Section 31 of the Act confers powers on the Commission to make such regulations as it may seem necessary for carrying out the purposes of the Act. Moreover, Section 3 of the Act prescribes that the Commission has been established for the purpose of conducting investigations and inquiries in respect of the complaints under the Act”, the Government further submitted, adding “it is clear that the jurisdiction of the Commission extends only to such complaints, which are made under the provisions of the Act”.
“Since the provisions of the Act don’t provide for suo-moto issuance of process to or taking of any action against any public functionary, the framing of any regulation such as Regulation 9 which purports to clothe the Commission with such jurisdiction, is clearly not an exercise necessary for carrying out the purposes of the Act and is beyond the scope of Act”, the State said, adding “the scope of Commission’s powers to frame Regulations under Section 31 of the Act is limited to matters that are necessary for carrying out investigations and inquiries in respect of the complaints made under the Act”.
The State further submitted: The Regulations were framed and notified in the year 2005 whereas the Act was amended in the year 2006 whereby Sub-Section (2) has been added to Section 11 of the Act and has been made effective from January 3, 2006. By virtue of Sub-Section (2) it has been made clear beyond any shadow of doubt that every complaint shall be accompanied by an affidavit as such there is no scope for initiation of any suo-moto process or action without any complaint at all. Evidently, Regulation 9 framed by Commission fails to conform the Act and it exceeds the limits of authority conferred upon the Commission under the Act.
Submitting that the power of delegated legislation has to be exercised within the scope and ambit of the policy/ intention demonstrated in the enactment itself, the Government said, “the subordinate legislation has to be confined only to the extent it is in consonance with the provisions of the main enactment and any deviation in this behalf may be termed as colourable legislation which is impermissible under law and the constitutional mechanism prescribed in this regard”.
While reproducing Section 31 of the Act, the Government said, “there is no mention in this section about giving power to the Commission to make Regulations for taking suo-moto cognizance nor any provision of the Act gives such a power to the Commission for making Regulation in this regard”, adding “the suo-moto power under Regulation 9 is in conflict with the provision of Act more particularly in respect of the procedure to be adopted by the Commission after receipt of a complaint and also runs in conflict with penalty provision as provided under Section 24 of the Act”.
“In case an action taken by the Commission under Regulation 9 ultimately ends in innocence of the public functionary against whom the Commission will proceed. The legal position in this regard holds the field that if a statute prescribes to do a thing in a particular manner, it has to be done in that manner alone or not at all and that a statutory authority has to perform its functions as per the statute itself and not beyond that”, the Government concluded.
It is worthwhile to mention here that the cases pending for the past five to seven years pertain to SAC proceedings against Arvind Sharma in wheat grinding scam also involving the then Minister for CAPD, Taj Mohi-ud-Din (presently Minister for PHE, Irrigation and Flood Control), proceedings against the then Minister for Health, Suman Bhagat and her PRO Vikas Behal for their involvement in illegal nominations in AMT Schools at Jammu and Srinagar.
Similarly, SAC proceedings against former Deputy Chief Minister, Mangat Ram Sharma for his involvement in illegal appointments scam in Khadi Village and Industries Board (KVIB), Minister of State for Cooperative, Dr Manohar Lal Sharma in a housing cooperative society scam, Commission’s action against the then Minister for Rural Development and presently Minister for Public Enterprises, Peerzada Mohammad Sayeed in rural electrification scam and his involvement in use of unfair means by his foster son in Board of School Education (BOSE) exam and proceedings against the then Minister of State and presently MLA Doda, Abdul Majid Wani in multi crore timber scam could not be taken to logical conclusion because of interim directions from the High Court.
The SAC had also initiated proceedings against the then DIG Satvir Gupta in Disproportionate Assets case and Dr Mohd Deen, the then Commissioner Secretary Animal Husbandry Department and Dr Satvir Gupta, the then Director Sheep Husbandry for causing wrongful loss to the State exchequer. As far as Dr Deen and Dr Gupta are concerned, the Accountability Commission had recommended termination of their services and forfeiture of their pensionary benefits.
It had recommended termination of services of Farid Ahmed Tak, the then Executive Engineer Power Development Department and initiated proceedings against Sheikh Rafiq Ahmed, the then Additional DC Jammu in fake PRCs case.
The SAC had also initiated proceedings against Ravinder Gupta, the then Director Youth Services and Sports. He was recently attached with the office of the Registrar Cooperatives Societies pending enquiry against him in numerous complaints of financial and other irregularities in the JAKFED during his tenure as Managing Director.
Farhat Qureshi, the then Secretary Housing Board was also facing SAC proceedings but due to interim directions from the High Court the same could not be taken to logical conclusion like numerous other cases involving bureaucrats like Atal Duloo (presently Commissioner Secretary Tourism) and Ashok Parmar, the then Vice-Chairman Jammu Development Authority.
Mohinder Singh, Chairman Jammu Central Cooperative Bank Limited and Arun Bakshi, OSD to the Chairman of the Bank have also obtained interim orders from the High Court after SAC initiated proceedings against him along with Minister of State for Cooperatives, Dr Manohar Lal Sharma in the recent past.
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