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Radha Krishna Bhartistate Of U.P. And Others v. State Of U.P. And Others - WRIT - A No. 55515 of 2006 [2006] RD-AH 17552 (11 October 2006)


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Court No. 38

Civil Misc. Writ Petition No. 55515 of 2006

Radha Krishan Bharti


State of U.P. and others

Hon'ble V.K. Shukla, J.

Present writ petition has been filed questioning the validity of order dated 22.08.2005, by means of which Deputy Secretary to the State Government has requested the Additional Director General of Police, Economic  Offences Investigation Organization, Lucknow, to investigate the matter and submit report.

Brief background of the case, as disclosed in the writ petition, is that petitioner had been performing and discharging duties as Inspector of Sanyukt Samiti Panchayat Udyog, Khorabar, District Gorakhpur (herein after referred to as Panchayat Udyog). Panchayat Udyog has been established by Panchayat Raj Department to run cottage and small scale industries. Productions of Panchayat Udyog are purchased by Government Departments on preferential basis. The State Government on 19.07.1976 issued Government Order exempting Panchayat Udyog from inviting tender and quotation and the Head of all the Departments of the State Government were directed to give supply orders to Panchayat Udyog without tender and quotation. Subsequently, circulars were also issued to the Chief Development Officers, Project Directors of D.R.D.A. and therein also it was mentioned to give preference to Panchayat Udyog  for supply of articles to Government Departments and an scheme, known as Swarna Jayanti Gram Swarozgar Yojna, was floated, and in order to make the scheme successful various purchases were to be made from Panchayat Udyog. Petitioner under the aforesaid scheme supplied stationary and books in various districts. In the implementation of the aforesaid scheme large scale irregularities were noted by the State Government, and thereafter the State Government in its turn on 22.08.2005 took decision to get the matter investigated by Economic Offences Wing of the State Government. Pursuant to the same F.I.R. has been lodged at Police Station Sadar, District Mirzapur, wherein name of petitioner has also been shown. Contention of petitioner is that he has supplied stationary and books in various districts; hence similar F.I.Rs. would be lodged in all the districts. Petitioner has contended that action of the State Government by means of communication dated 22.08.2005 is unsustainable in law, inasmuch as before proceeding to entrust the matter to the Economic Offences Wing, departmental enquiry ought to have been conducted and thereafter disciplinary action ought to have been taken against the employees and ultimately, if it was found that there was some criminal liability then only prosecution could have been initiated. In this regard reliance has been placed on Government Orders, dated 28.01.1999 and 07.08.2006. Supplementary affidavit has also been filed, enclosing therewith the functioning of the Economic Offences Wing.

Sri S.P. Pandey, learned counsel appearing for the petitioner, contended, with vehemence, that petitioner had been performing and discharging duties bona fide. Here, in the present case criminal investigation has been entrusted without undertaking requisite exercise i.e. by making investigation at the level of the Department and thereafter if material was found, to initiate disciplinary proceeding, and if criminal offence was disclosed, then criminal prosecution was to be entrusted to the Economic Offences Wing. As no home work has been done, as such entire proceedings undertaken are illegal and liable to be quashed.

Learned Standing Counsel, on the other hand, contended that large scale irregularities have been committed, as such matter qua economic offences has been rightly entrusted to Economic offences Wing, which requires no interference.

After respective arguments have been advanced, undisputed position which emerges is to the effect that in Swarna Jayanti Gram Swarozgar Yojna large scale irregularities were found, and as misappropriation of government fund was involved, matter has been entrusted to Economic Offenses Wing, which came into existence in the year 1970, initially as part of C.I.D. In the year 1977 it became separate  specialized Investigation Branch of U.P. Police. The main task of EOW is to conduct investigation      and prosecution of cases of cheating, fraud and misappropriation of government money concerning the departments, out of which P.R.D. is also one of them. Apart from this Government is empowered to entrust the EOW cases concerning other departments and private persons depending upon ramification of the economic offenses committed. The EOW is also empowered to collect intelligence regarding loss of  Government revenue and bring such cases to the knowledge of the Government for follow up action.

Here, in the present case request dated 22.08.2005 reflects that Principal Secretary, Gramya Vikas Anubhag on 15.07.2005 submitted report in 17 pages and requested the State Government that in Swarna Jayanti Gram Swarozgar Yojna, there have been large number of irregularities, and after the said report was submitted, the State Government in its wisdom chose to entrust the matter to the EOW. Deputy Secretary to the State Government communicated to the Additional Director, Economic Offenses Investigation Organization with the decision of the State Government for getting the matter entrusted to it. Thus, the impugned communication dated 22.08.2005 is based on the report of the  Gramya Vikas Anubhag dated 15.07.2005, requesting for the matter to be entrusted to the EOW and thereafter  Government in its turn entrusted the matter to the EOW.

In the present case, objection which has been sought to be raised  is that concerned department should have made enquiry at its own level and thereafter if the Principal  Secretary to Gramya Vikas Anubhag was satisfied that prima facie economic offence had been committed, then request should have been made to the State Government for entrusting the matter to the EOW. Here the  State Government on the basis of the material so supplied has taken decision to get the matter investigated by EOW. As far as petitioner is concerned, he is questioning the action of the State Government in entrusting the investigation to the EOW. Much reliance has been placed on the letter dated 07.08.2006 for the proposition that requisite home work ought to have been done. Said letter itself refers to  Swarna Jayanti Gram Swarozgar Yojna, but at no point of time said letter mentions that investigation be withdrawn from EOW and the matter be sent to the Department concerned for requisite home work. The decision which has been taken on 22.08.2005 is purely administrative decision, wherein petitioner is not at all on the scene, inasmuch as once the authorities are satisfied that economic offence has been committed, then there is no fetter on the  authority of the State Government to get the matter investigated by the EOW. Consequently, in the present case the order through which request has been made to get the matter investigated by the EOW does not suffer from any illegality or infirmity. It has also been contended that  EOW would lodge series of F.I.Rs. against petitioner and petitioner may be saved from victimization. This Court  cannot issue writ in the nature of mandamus prohibiting EOW from lodging F.I.R.  In the event of offence prima facie being disclosed, lodging of F.I.R. is the prerogative of the establishment. Consequently, prayer which has been made in this respect is unfounded, as such no writ of mandamus can be issued to prohibit any authority from discharging and performing its statutory function. The law will take is own course. Writ petition is devoid of substance and the same is dismissed.  




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