HAMIDULLAH BHAT (TRALI) Vs. STATE OF J&K

JUDGEMENT

(1.) THE special Judge Anti -Corruption Kashmir framed charges under Section 5(1)(e)/5(2) of the Prevention of Corruption Act and u/ s 12/14 of the Public men and Public Servants Declaration of Assets and Other Provisions Act, 1983 against the petitioner vide order dated: 15.11.1999. The petitioner seeks quashing of the charge as well as proceedings on the following grounds: -

(2.) MR .Qayoom, learned counsel for the petitioner argued that under Section 10 of the Prevention of Corruption Act, Vigilance Organisation comprises of Commissioner of Vigilance and other officers. Since on the date the case was registered the office of Commissioner of Vigilance was lying vacant, therefore, the case could not have been registered. He next argued that the allegations of possession of these assets were earlier investigated in 1981.1986 and 1995, but each time the case was closed as not proved. The petitioner produced these documents before the trial court, but these were not considered and, therefore, the charge is liable to be quashed in view of the law laid down in State of Madhya Pradesh vs. Mohan Lal Soni, AIR 2000 SC 2583.

(3.) SECTION 10 in fact was substituted vide Act No.IX of 1983. This section refers to the initial constitution of the organisation to replace Anti -Corruption Organisation. While sub -section (1) empowers the Government to establish Vigilance Organisation, sub -section (2) Provided for its constitution which is to consist of a Vigilance Commissioner and such other officers and staff as may be appointed from time to time. The constitution or establishment of the organisation is different than the occupation/holding of the post in the Organisation. The expression "The organisation shall consist of Vigilance Commissioner and such other officers" refers to the structure of the organisation. Since the posts of Vigilance Commissioner and other officers are transferable because the Government has been given the power to make appointments from time to time. If any post remains vacant, the Organisation does not cease to exist as is argued. It is not constitutional post, but a post created by the Government. Unlike constitutional post, absence of the officer either because of retirement or failure to appoint does not mean that the Organisation does not exist. Creation of post is one thing and the appointment another. What is important is whether the post of Vigilance Commissioner existed or had been abolished. Since the direction dated: 03.12.1996 was issued by Shri Dasalphine in his capacity as a Vigilance Commissioner, it means he had already been appointed as Vigilance Commissioner. The issue of order dated: 19.12.1996 only empowered him to discharge the powers of Vigilance Commissioner under sub -section (3) of Section 11. Section 11 in fact vests the superintendence and administration of the Vigilance organisation in the Government, but under sub -section (2) of this Section administration of the Organisation vests in the Vigilance Commissioner. Until the issue of Government order dated: 19.12.1996, the superintendence and administration of the organisation both vested in the Government, but after this administration vested in the Vigilance Commissioner. So the order dated: 03.12.1996 directing the constitution of different teams for special operation is not vitiated because the Government had already appointed him as Vigilance Commissioner though at that time he was not empowered under sub -section (2) and (3) of Section 11, but the direction being purely of administrative nature, if it had been carried out by officers of the Vigilance Organisation, their action would not suffer from any illegality, if they had the power to act under the Act.