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Judgment
S.K. Gangele, J.—The petitioner has filed this petition for various reliefs mentioned in the relief clause. During arguments, learned counsel for the petitioner has submitted that he is pressing the relief (i) (d) in regard to quashment of criminal proceedings initiated against the petitioner vide Crime No. 220/2003. The petitioner is a society registered under the provisions of M.P. Society Registrikaran Adhiniyam, 1973. Registration number of the petitioner society is 15091/85. Respondent No. 1 decided to establish Krishi Vigyan Kendra at various parts of the country. In the year 1992, respondent No. 1 granted approval to the petitioner for establishment of Krishi Vigyan Kendra at village Sironj, District Vidisha. A Memorandum of Understanding (MOU) was entered into between the petitioner and the respondent No. 1. In accordance with the aforesaid MOU, the respondents sanctioned an amount of Rs. 74.60 lac in favour of the petitioner. Thereafter, the petitioner appointed employees in accordance with MOU for the purpose of work. The petitioner initiated various works to achieve the goal through Krishi Vigyan Kendra.
The President of the petitioner society is a member of Indian National Congress Party. The then MLA from Lateri District Vidisha Shri Laxmikant Sharma made a complaint on 24.7.1998 against the working of the petitioner society and levelled number of allegations. The Member of Parliament also forwarded a letter to the Ministry of State levelling certain allegations against the petitioner society. Thereafter, a committee was constituted consisting of following persons to enquire into the allegations levelled against the petitioner society:-
(1) Dr. K. Pradhan, Former Vice Chancellor of OUAT Bhubaneshwar and RAU, Bikaner Present Address: C-24, HIG Housing Board Colony, Baramundra, Bhubaneswar - 751003.
Chairman
(2) Dr. J.S. Kolar Director of Extension Punjab Agricultural University Ludhiana - 141001.
Member
(3) Asst. Finance and Accounts Officer Zonal Coordinating Unit, one VII ICAR, Jabalpur (MP)-482004.
Member
(4) Dr. S.K. Das Zonal Coordinator, Zone VII ICAR, Jabalpur (M.P.)-482004.
Member Secretary
Dr. J.S. Kolar could not continue as Member of the committee because he had to go abroad, hence, in his place Dr. S.L. Intodia, Director of Extension Education, Rajasthan Agricultural University, Campus - Udaypur was included as Member of the Committee. The Committee conducted an enquiry and submitted its report. A copy of the report has been filed as Annexure P/16 alongwith the writ petition. The Committee recorded following findings against the allegations made in the complaint of the local MLA and Member of Parliament:
FINDINGS/OBSERVATIONS
The Committee carefully went through the para-wise issues of the allegations made by Shri Laxmikant Sharma and comments on those issues by the host institute (Annexures VII & VIII), examined the records available with the KVK, interacted with the staff and farmers and discussed on various issues with the President. Training Organiser and other KVV staff. The findings of the committee are as follows:-
Appointment of Training Organiser
Allegation
It has been indicated in the allegation that Dr. Shahid Meer Khan was appointed in the pay scale of Rs. 3700-5700 and without the approval of the Council he was given the pay scale of Rs. 4500-7300. It has been further indicated that Dr. Khan did not possess the adequate qualification and experience for the post. Also prior to appointment of Dr. Khan, there was an irregular appointment of a unknown person as Training Organiser for 6 months.
Observation
Dr. Shahid Meer Khan, prior to joining the KVV Sironj, was working at the Govt. College, Banswara, Rajasthan in the pay scale of Rs. 3700-5700 with a basic pay of Rs. 4325.00/-. Dr. Khan was selected as Principal Scientist by a properly constituted selection committee chaired by the then Deputy Director General (AE), ICAR and joined as such in the pay scale of Rs. 4500-7300 in November 1992 (Annexure IX). The committee after considering the required academic qualification and experience, selected Dr. Khan for this post. Therefore, it is wrong to say that Dr. Khan was appointed in the pay scale of Rs. 3700-5700 and not meeting the qualification requirement.
It may be indicated here that on the advise of ICAR the Samiti has reverted Dr. Khan to his original pay scale of Rajasthan Government i.e. Rs. 3700-5700 as he continues to be on deputation with the Samiti from his parent department in Rajasthan.
Before the appointment of Dr. Shahid Meer Khan as Training Organiser, the Samiti made an ad-hoc arrangement for functioning of the KVK. Initially, Shri Dharmendra Gupta was appointed by the Samiti as Principal Scientist/Training Organiser purely on ad-hoc basis for a period of six months in a pay scale of Rs. 4500-7300 vide letter No. SMMVS/DES/92 dated 25-07-92 (Annexure X.) Meanwhile the post was advertised in "Employment News" (Annexure XI), selection was made and Dr. Khan had joined on regular basis as indicated earlier. Therefore, it is wrong to say that there was an irregular appointment of a unknown person.
Based on the observations the committee felt that the appointment of Dr. Shahid Meer Khan was in order.
Appointment of Shri Lal Chand Yadav
Allegation
Shri Lal Chand Yadav, working earlier as Field Supervisor (Attendant) in the pay scale of Rs. 750-900 was promoted to the post of Training Assistant in the pay scale of Rs. 1640-2900 without the approval of the ICAR. It was further raised in the representation that he does not attend office and sign the attendance register regularly.
Observation
It was procedurally wrong to have promoted Shri Lal Chand Yadav, Field Supervisor to the post of Training Assistant, though Shri Yadav possesses the academic qualification for the post. The Council also observed that Shri Yadav''s promotion for Field Supervisor to Training Assistant was irregular and therefore asked the organisation to revert Shri Lal Chand Yadav to the post of Field Supervisor. This has been complied by the organisation (Annexure XII). The organisation was to recover the excess payment made to Shri Yadav due to irregular promotion. In this connection Shri Yadav made an appeal to the Samiti on 08.02.99 to maintain the status quo (as Technical Assistant) which was forwarded to the ICAR vide letter No. KVK/SRJ/DES/39/99 dated 19-02-99 (Annexure XIII).
Shri Yadav also put forward his grievances and submitted a written request to the committee to reconsider his case and allow him to continue as Training Assistant. The committee feels that the Samiti in consultation with the ICAR may take appropriate action in this case soon.
Scrutiny of the attendance register maintained by the KVK has shown that Shri Yadav marked his attendance regularly and wherever he was on leave, the same was indicated in the attendance register. Attendance register also showed that Shri Yadav attended office regularly in 1998 but took leave frequently in 1999 (Annexure XIV).
Information collected during the visit at the adopted villages of the KVK indicate that Shri Yadav visits the villages frequently and he is quite familiar with the farmers. Therefore, there is no valid reason to believe that Shri Yadav was not attending to KVK work and not signing the attendance register.
Appointment of Shri Mehboob Malik as Typist
Allegation
It has been indicated that Shri Malik has been appointed as Typist in the KVK who does the application was fictitious. Shri Malik does not attend the office, but his salary is being paid to him regularly.
Observation
Shri Malik was appointed on July, 1992 purely on ad-hoc basis for the post of Clerk/Typing subject to the condition that he should produce Diploma in Typing within 6 months of joining the KVK vide Samiti Office Order No. Samiti/DES/92 dated 25-07-92 (Annexure X).
Examination of the records showed that Shri Mahboob Malik successfully completed typing course in 1991 within B grade at Pearl Computer Solutions, Bhopal (Annexure XV). Earlier Shri Malik worked as Typist-cum-Clerk with Alhuda Educational Society for about two years (Annexure XVI). Another testimonial of Shri Malik also indicates that he has received training on use of Godrej Electronic Typewriter (Annexure XVII).
As regards the mark sheet of Higher Secondary Examination is concerned, the original one issued by the Board was verified by the committee. There was no fictitious mark sheet. Screening of the attendance register maintained with the KVK and examining his typing ability indicate that he is regularly attending the office providing satisfactory services to the KVK and receiving his salary.
The committee, therefore, observed that the appointment of Sri Mehboob Malik was in order and he is giving satisfactory services to the KVK as a typist.
Appointment of Shri Sanjay Jain as Stenographer
Allegation
It has been represented that Shri Sanjay Jain who has been appointed as Stenographer does not have any knowledge of stenographer.
Observation
Shri Sanjay Jain was selected as Stenographer/Clerk in July, 1992 in the pay scale of Rs. 1200-2040 subject to the condition that he should produce Diploma in Stenography within 6 months (Annexure X).
Credential of Shri Sanjay Jain indicates that Shri Jain participated in the Godrej National Speed Tying Championship in 1993 at Bhopal and attained a speed of 71 wpm with accuracy and neatness to the satisfaction of the Examination Committee (Annexure XVIII). The Committee further gathered that Shri Jain is a good stenographer in English. However, he often commits spelling mistakes while taking dictation and typing it in Hindi.
The committee, therefore, felt that the appointment of Sri Sanjay Jain was in order.
Appointment of Shri Rakesh Sharma as Accountant
Allegation
It has been indicated that Shri Rakesh Sharma who has been appointed as Office Superintendent-cum-Accountant is MA instead of M.Com.
Observation
Shri Rakesh Sharma was selected by the Committee on purely ad-hoc basis in July, 1992 subject to production of certificate in Accountancy and Office management within 6 months of joining the KVK as shown earlier in Annexure X.
Credential of Shri Rakesh Sharma indicates that Shri Sharma is a Diploma holder in Office Management and Financial Accounting securing third position conducted by Datapro Information Technology in 1990 (Annexure XIX). Further qualification required for the post as mentioned in the advertisement issued by the Samiti on July 10, 1992 (Annexure XX) indicates that for the post of Office Superintendent-cum-Accountant the essential qualification is Post Graduate with knowledge in accountancy.
Preference will be given to the candidates with Commerce Degree.
The Committee observed that Shri Rakesh Sharma met the essential requirements of qualifications for the post he has been appointed.
Termination of Shri Md. Alim, Driver.
Allegation
It has been alleged that Shri Md. Alim, Driver was threatened to be thrown out of job if he does not accept a salary of Rs. 1500.00/ month.
Observation
Shri Alim was selected in July, 1992 as Jeep Driver along with other officials (Annexure X). His services were terminated due to his indiscipline and irregular presence on duty as shown in Annexures XXI and XXII. Shri Alim''s representations to the Samiti (dated 3-1096 and 25-02-98) do not include any point about his salary as alleged.
The committee observed that the Shri Alim was removed from his job due to negligence in discharging his duties.
Utilization of funds meant for salary for the persons who left the KVK.
Allegation
Shri Sharma raised a question on the use of the money under salary for the employee who left the KVK in between a financial year.
Observation
The Committee gathered that salary of the persons who left the KVK in the middle of the year was not drawn. The fund released by the ICAR remains as unspent amount and then adjusted to meet the additional burden due to increase in DA. At the end of financial year, unspent balance is taken into account by the ICAR in releasing fund for the next financial year.
The committee did not observe any misappropriation of fund on this account.
Improper utilisation of KVK funds for training, misuse of tractor, jeep, motor cycle, seed and fertiliser and farm produce.
Allegation
It has been mentioned that fund meant for training has been misutilised. Further, the tractor is utilised in the plot owned by the brother of the President of the organisation. Vehicles have been used for personal purposes. Seed and fertilizer of the KVK have been used for the land located at Mahu village. Farm produce is utilised by the President of the organisation.
Observation
Fund for training: The year-wise training programmes conducted, number of farmers and in-service personnel trained, fund received and expenditure incurred on training are given in Annexure XXIII. The expenditure incurred was lesser than the fund received in all the years. The committee was informed that the unspent balance was used in other heads. It was difficult to verify it as the accounts records are not properly maintained under various heads.
Use of tractor: The tractor was purchased in May, 1993. The broad use of the tractor, as indicated in the log book, are for KVK land development, to carry farmers in trolley for training, to transport seed, agro-chemicals and planting materials, to transport materials for construction of building and demonstration units, to transport materials (thorny plants) for fencing of the farm, to transport farm produce for sale in Mandi, to transport boulders/murum in laying out the approach road, to transport grasses/feed for animals and agricultural operations etc. The tractor was used for 321, 415, 950 326, 336.3 and 235.3 hours during 1993-94, 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99 respectively.
Use of the tractor with trolley for transport of building materials increased the working hour in 1995-96 when the administrative building of the KVK was under construction. The committee found no evidence to support the allegation and felt that the tractor was used for KVK work.
Use of jeep: The jeep was purchased in August, 1995 and as per log book was used mainly for: conducting on-campus and off-campus training programmes, village survey, selection of farmers for Frontline demonstrations, field visits, conducting field days/Kisan goshtis, participation of KVK scientists in state level training, election duty, pulse polio and vaccination programmes of state government, supervision of LLP, FLD and OFT programmes on farmers'' fields etc. The jeep was occasionally taken to Bhopal for purchase of office items, discussion with President of the Samiti who resides in Bhopal, purchase of seed and chemicals, to attend audit work, to carry the farmers to visit CIAE and participation in the programmes organised at CIAE. The use of the jeep over the years, as recorded, is 17912 km. In 1995-96, 25754 km. In 1996-97, 25813 km. In 1997-98 and 19760 km. In 1998-99.
The committee observed that the jeep was used for KVK activities and occasionally for government work.
Use of motor cycle: The motor cycle was purchased in April, 1993 and was used as indicated in the log book, to supervise KVK farm activities for contacting farmers for KVK activities, such as village survey, field days, FLD, LLP, data collection, for going to bank and post office and for vaccinating animals in villages. The motor cycle covered 10339 km. in 1993-94. The same for 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99 were 6556, 12149, 8965, 6471 and 5639 km. respectively. The use of the motor cycle was reduced after purchase of the jeep as indicated above.
The committee observed that the use of motor cycle was proper.
Seed, fertiliser and other input use: With respect to the misuse of fertiliser, seeds and other inputs, the members of the committee checked the relevant records maintained at the KVK and found that the inputs purchased under various activities like FLD, OFT and others are properly entered and their utilization have also been recorded along with the signatures of the beneficiaries to whom these inputs have been provided under different programmes. To further verify this, the members visited three out of the 9 adopted villages, namely, Devitori, Siddiqui Ganj and Anuppur. The members contacted the beneficiary farmers and had interaction and discussions with individual farmers and also in groups where several queries were made from them. The farmers informed that the inputs were supplied to them by the KVK and this was also tallied from the official record.
The team also visited the vegetables crops planted by the farmers under the guidance of KVK scientists and found that the performance of the crops was quite satisfactory. On enquiry from the farmers it was revealed that the following important aspects were covered during the training programmes attended by them either at the KVK or in the villages itself: vegetative propagation of fruits plants, nursery preparation of vegetables, improved agronomic practices for soyabean cultivation, seed treatment of gram by Thirum and bio-fertiliser, planning and layout of kitchen garden for winter vegetables and compost preparation, food and nutrition management for pregnant and lactating mothers, and dairying a profitable enterprises for small and marginal farmers/rural youth.
The farmers informed, when asked, that KVK scientists frequently visit their villages and provide them required need-based and location-specific technology. The general impression of the farmers was that the yield in different crops, after the contact of the KVK scientists, have increased tremendously and that has resulted into better economic returns. Many farmers after their adoption of new technology as per the advise and demonstrations conducted by the KVK scientists, have purchased tractors and other improved farm implements.
The KVK''s efforts in helping the farmers through personal contact training providing inputs and demonstration to increase production and productivity of crops and livestock in the area made a visible impact.
The committee was convinced about the proper utilisation of funds for various activities of the KVK.
TA claim of Dr. S.M. Khan
Allegation
It has been represented that Dr. Shahid Meer Khan claimed T.A. even when he used the KVK vehicle as transport.
Observation
Record produced to the Committee revealed that Dr. S.M. Khan claimed only daily allowance when he used the KVK vehicle for journey on tour (Annexure XXIV).
The committee did not find the allegation justified.
Fund utilization in construction of KVK building
Allegation
It has been alleged that materials of inferior quality have been used for construction of the administrative building. Construction of Kisan Bhavan and staff quarters has not been done. Materials required for construction of the building have been purchased from bogus shop.
Observation
Construction of the KVK administrative building started in 1994-95 and completed in 1995-96. The records made available to the Committee indicate that initially an amount of Rs. 13.20 lakh was approved for construction of the KVK main building (Annexure XXV). This was revised to Rs. 19.53 lakhs after verification of the buildings and expenditure made for construction by the Executive Engineer of ICAR who visited KVK, Sironj on 16-03-1996 (Annexure XXVI) indicating that the construction of the building was satisfactory as certified by Works Division of ICAR (Annexure XXVII). However, the ICAR did not release funds for construction of other buildings such as staff quarter and trainees hostel.
The materials required for construction of the administrative building were purchased following standard norms as evidenced in Annexures XXVII, XXIX and XXX.
The committee did not see irregularity in the matter.
Others
Revolving fund: The KVK received Rs. 3.0 lakh from ICAR in two instalments during 1992-93 and 1993-94 for farm development. The 23.9 ha farm was earlier a sloppy rocky outcropped area. Much of the fund allotted for the purpose was utilized in land clearing land shaping, fencing etc. The Committee members during the visit of the farm could appreciate the hard work and money that has gone into it.
Under the revolving fund, the KVK was released Rs. 1.00 lakh i.e. Rs. 50,000 each during 1992-93 and 1993-94. As per the records, the KVK has utilised this fund towards establishing orchards, medicinal plaints and farm development, in addition to growing filed crops Rs. 15000.00 was also utilised for strengthening of dairy unit. It has been observed that the closing balance available with the KVK at the end of 1998-99 was minus Rs. 52,629.00. As the KVK was having farm produce worth of Rs. 70.000.00 the net balance may be treated as Rs. 17,371.00 (Rs. 52,629). It is expected that funds invested in orchard and medicinal plants may yield income after few years.
The committee observed that KVK should utilise the revolving fund for resource generation and should not use it for farm development and other activities. The Council may take immediate action to correct the situation.
Farm produce: The position of farm produce of the KVK was reviewed by the team and observed that there is an increasing trend in income though small, from the sale of farm produce over the years as shown in Annexure XXXI.
The committee observed that the KVK has made progress over years in increasing the productivity and production of crops grown in the KVK farm.
Disposal of farm produce: Grains are sold in the Mandi by a constituted committee of the Samiti. Vegetables are sold in the market as per the day to day prevailing market price which is assessed by a Committee and rates of different commodities are fixed accordingly. The sale proceed and mandi receipt are handed over to Training Organiser who along with the Farm Manager and Suptt. acknowledge it and the money is deposited in revolving fund account maintained by the KVK.
The committee observed that appropriate procedure is being followed by the KVK in disposing the farm produce.
Maintenance of records: The committee observed that no systematic procedure has been adopted for maintenance of office records and financial transactions. Some of the examples as quoted below to testify it.
- The KVK does not maintain a leave record file. Leaves availed by the staff are entered in attendance register.
- The KVK does not maintain stock (store) register properly which does not indicate the bill reference and issue of the items and balance thereof.
- No attempt has been made by the KVK to maintain PF account, and PF ledger. The deduction made is not properly recorded.
- The bills are not signed by the Accountant as pay order, cash book is not attested by the cheque signatory. Bills are also not properly classified and filed in the desired norm. For example, the vouchers are not numbered in serial.
- Subsidiary cash book is not maintained.
- The Samiti is yet to formulate a sound purchase procedure. Presently the Training Organiser is empowered for all financial transactions (Annexure XXXII).
The committee felt that it is necessary that proper records, particularly dealing with accounts must be maintained by the concerned persons under the close supervision of the Training Organiser.
Overall Observations of the Committee on the Functioning of the KVK.
The KVK is about seven years old. Its infrastructural facilities including buildings have been developed with the financial assistance from the ICAR. Two more buildings as indicated in the allegation could not be constructed due to non-availability of funds from the ICAR.
Shri Malwa Mahila Vikas Samiti (SMMVS) adopted the proper procedure in recruitment of the staff for the KVK. The committee did not find any discrepancy in it. However, in one case wrong procedure was adopted in promoting an employee to higher post which has subsequently been rectified.
Examination of the log book maintained for the tractor, jeep and motor cycle showed that the vehicles were used for KVK work. However, in view of financial constraints, further monitoring of the use of vehicles should be made.
The committee did not have reasons to believe that there were misappropriation of funds allotted by ICAR. In fact, the Samiti is managing the activities of the KVK well under severe financial constraints. Audit Utilization Certificates also confirm to the utilisation of funds within budgetary limits (Annexure XXXIII to XXXVIII).
However, the committee observed inadequacy in adopting proper procedure and maintaining the records of financial transactions which might have been due to lack of experience of the concerned staff on the subject.
Management of revolving fund should have been made exclusively for resource generation. Having got Rs. 3.00 lakhs from ICAR for farm development the KVK further diverted money of revolving fund for farm development which should have been avoided.
The committee observed that there is an urgent need of proper maintenance of official records and financial transactions in the KVK. These points were discussed and the methodologies were explained to the Training Organiser, Incharge farm and Office Superintendent-cum-Accountant. The committee further recommends that the Assistant Finance and Accounts Officer of the Zonal Coordinating Unit of ICAR at Jabalpur may assist the KVR staff in streamlining the office management, particularly relating to maintenance of records and utilisation of funds.
The Committee did not find any irregularity. Thereafter, on the basis of the recommendations of the Committee, the Society had taken steps for maintenance of accounts. Another Committee was constituted consisting of Dr. F.R. Sheriff, Chairman, Dr. R.A. Khan, DES, JNKVV, Jabalpur, Dr. Anupam Mishra, ZC Unit, Zone-VII, Jabalpur and Shri A.K. Maheshwari, ZC Unit, Zone-VII, Jabalpur.
The Committee again inspected the record of the society and made following recommendations:-
The Committee recommends that all infrastructure created from ICAR financial assistance may be transferred to JNKVV, Jabalpur in the presence of District Administrative Authority. All the records indicating the purchase of movable and immovable property as available in the KVR, Sironj need to be handed over to JNKVV, Jabalpur, JNKVV may prepare their own inventory of all the movable and immovable assets indicating the cost and source of purchase.
The Committee recommends that the lease land as per survey number 155, 156, 157, 204 covering a total area of 12.64 hectare may be transferred from NGO (SMMVS) to JNKVV and JNKVV may be allowed to take free and total possession of the land without any encumbrances.
The President, SMMVS may provide the records of the staff on roll on the date of termination of the KVK. The staff those who were on roll on the date of termination of the functioning of KVK, Sironj if interested to be absorbed by JNKVV, they may send their application to JNKVV. The University may consider their application at the time of recruitment based on their rules and regulation of recruitment procedure and service conditions. However, the existing staff of the closed KVK cannot claim as a matter of right to be absorbed by JNKVV directly.
The accounts maintained by KVK, Sironj needs to be closed immediately. The balance available in the bank in the name of KVK, Sironj may also be transferred to Zonal Coordinating Unit, Zone-VII, Jabalpur alongwith bank reconciliation statement. The Audit Utilization Certificate till the date of termination of KVK may also be submitted to the Zonal Coordinating Unit, Zone-VII, Jabalpur without any disparity between closing the balance and balance indicated in audit utilization certificate.
The committee recommends that the JNKVV should not be made responsible for any legal/committed/encumbrances of the erstwhile NGO KVK arising after taking over by the JNKVV.
Copy of the recommendations and report of the committee has been filed as Annexure R/1 alongwith the return.
On the basis of the complaints of Shri Shivraj Singh Chauhan, the then M.P. and Shri Laxmikant Sharma, MLA, Sironj, ICAR constituted an Audit Team and the Audit Team conducted inspection of the Society from 5.12.2001 to 12.12.2001 and submitted its report on 5.2.2002. Thereafter, ICAR had decided to lodge FIR based on the inspection report on the basis of report of audit committee. Copy of the draft FIR has been filed as Annexure R/2. On the basis of the aforesaid draft FIR, an FIR was lodged at Police Station Sironj, District Vidisha and the police registered an offence vide Crime No. 220/03 under Sections 420, 406, 468, 471 IPC against the President of the petitioner society. The same draft FIR, which was forwarded by the ICAR has been registered as FIR. The following are the ingredients of the draft FIR:-
A Krishi Vigyan Kendra (KVK) under the administrative control of President, Shri Malwa Mahila Vikas Samiti (SMMVS), Sironj, Vidisha, M.P. was established by the Indian Council of Agricultural Research (ICAR) vide Council''s letter issued under No. 3-2/92-KVK dated 29th March, 1992 (copy enclosed). Thereafter, a Memorandum of Understanding (MOU) between the ICAR, Krishi Bhawan, New Delhi was entered into and it was signed by Smt. Masharat Sahid, President, SMMVS, Bhopal (copy enclosed).
As there were complaints of administrative/financial irregularities, misappropriation, misutilization of funds, etc. against the referred organization SMMVS, Sironj made by Shri Shivraj Singh Chauhan, M.P., Lok Sabha and Shri Laxmikant Sharma, MLA, Sironj. Due to number of complaints, an audit team was constituted on 27.8.2001. Audit Team after conducting inspection w.e.f. 5.12.2001 to 12.12.2001 submitted its report on 5.2.2002. That the audit report was examined in the ICAR at various levels and finding the irregularities to be grave, decided to the First Information Report (F.I.R.). Based on the inspection report on the accounts, the details of irregularities are given as under:-
Issues relating to making immediate recoveries
1.1 Irregularities in appointment of Dr. Shahid Mir Khan and wrong fixation of pay.
It appears that the Selection Committee also did not consult/see the recruitment rules prescribed for the post by the Council and selection was made as per the papers submitted to them. Resolution passed by the KVK Management for giving the deputation allowance in the selected post is not in consonance with the rules of the G.O.I./ICAR. Overpayment made to Dr. Khan in this regard may be recovered immediately. With regard to over payment in successive years, the admn. may be asked to calculate the amount on the basis of total pay and allowances drawn per month by Dr. S.M. Khan as detailed statement prepared by the KVK. It is seen that as per the statement the overpayment of Pay & allowances to Dr. Khan comes to Rs. 12,000/- per year from 18.2.93 till date is still to be recovered.
1.2 Irregularities in appointment of Shri Lal Chand Yadav to the post of Field Supervisor, and his ad-hoc appointment to the post of Trg. Associate in the pay-scale of Rs. 1640-2900.
It is seen that the post has been filled up without sponsoring the candidature either from Emp. Exchange or otherwise against any advertisement in Newspaper etc. but merely on the basis of receiving application from Shri Lal Chand Yadav.
A resolution dt. 19.6.97 was passed for the ad-hoc appointment of Shri Yadav, Field Supervisor to the post of Trg. Associate. Shri Yadav joined as T.A. on ad-hoc basis in the pay-scale of Rs. 1640-2900 on 1.10.97 and was reverted to the post of field supervisor in the pay scale of Rs. 760-940 on 1.1.99. His ad-hoc appointment is irregular. Matter needs further investigation for recovery of excess payment.
1.3 Irregularity in awarding labour contract for construction of building and payment to the tune of Rs. 41,131/- to different contracts/parties as labour charges.
Instead of inviting open tenders, limited tender system was resorted to M/s. H.S. Khan was awarded the contract. While making payment KVK, Sironj did not deduct the income tax at source @ 2% from M/s. H.S. Khan. This is direct loss of Govt. exchequer to the tune of Rs. 10,441.00 (being 2% of the total payment of Rs. 5,22,036.00 to M/s. H.S. Khan, contractor to the aforesaid works). Thus, the amount of Rs. 10,441/- needs to be recovered and deposited with the Income Tax Deptt.
KVR, Sironj made payment to different parties for the works which was to be carried out by the labour contractor. Thus, the payments amounting to Rs. 41,131/- is irregular and needs to be recovered.
1.4 Irregular purchase of tractor amounting to Rs. 1,95,510/-.
Open tender system should have been resorted to instead of limited tender system as purchase was for than Rs. 50,000/-. The order was placed to M/s. Raghuvanshi Tractors for Escorts 355 Tractor costing Rs. 1,95,510/- avoiding the lower rates quoted by three firms. Further, Council''s prior approval was also not obtained for making capital investment. Rates were obtained for different HP requirements to avoid comparison, finalizing a specific brand beforehand is not justified, quotations were collected by hand and order was placed for a pre-selected brand on higher rate, putting thereby net loss of Rs. 36,579/- to Council.
1.6 Unauthorized transfer of interest money in SMMVS Account
A sum of Rs. 4,50,000 received from the Council was deposited in SMMVS Saving account in August, 92, and a sum of Rs. 6,133/- has been credited by the bank as interest but this amount was transferred to SMVS account instead of KVK account. Similarly, KVK has opened FDRs during the period 28.8.93 to 27.9.94 and the interest earned thereon was transferred to Samiti Account instead of KVK account. Thus, KVK fund of Rs. 46,132/- remained unauthorisedly with Samiti for more than two years.
1.7 Irregular/excess payment of TA Claims
There are discrepancies in the procedure adopted. KVK did not check the TA claims properly of the staff with reference to the rules in force which has resulted overpayment to the staff which needs to be recovered and responsibility fixed. On checking, committee observed that an excess amount of Rs. 2402.65 has been paid in 30 cases.
1.8 Irregular payment of honorarium of Rs. 250/-.
Payment of honorarium of Rs. 150/- and Rs. 100/- were made to Dr. B.B.L. Tripathi and Sri V.S. Bhaduria respectively without approval of the competent authority.
Issues relating to irregular/improper award of contract and purchases made, etc.
2.1 Irregular appointment of consultant in connection with the construction of main building & seminar hall and other building work.
M/s. Mars Consultants was appointed for preparing estimates, building designs and supervision of construction work for admn. building, dairy unit etc. Payment of Rs. 46,900/- in different installments to this firm was against the rules. Appointment of Mars consultants is in violation of GFR and the payment made in this regard is irregular.
2.2 Irregular award of contracts for supply of material for construction of KVK buildings
Open tender system should have been resorted to instead of limited tender system, earnest money should be deposited. Further neither any security was obtained nor any agreement was entered with the supplier. Thus, the contracts were entered into in violation of prescribed rules and procedure
2.3 Improper mechanism adopted by KVK for assessment & procurement of building materials
The actual requirement of constructions materials were not assessed by the KVK and the material was procured on the basis of demand made by labour contract. This mechanisms leave scope for unjudicial purchase/use of building materials and seems to be disproportionate and requires further technical investigation.
2.4 Difference between the stock entries and actual receipt of building material resulting in excess payment.
Stock register is not properly maintained. It reveals that there is huge difference between the entries of the building material made in the stock register and actual receipt for the material as per receipt issued to the contractor.
A test check of the stock register and the receipt book was made and the discrepancies were noticed in which the stock entries have been made but receipt has either not issued or the quantity received shown less than the entries made in the stock register.
The building material was not received as per the receipt books but the entries have been made in the stock register and the payment has been made as per entries of stock register. The over payment made to different suppliers, without receiving the material needs to be calculated. This matter also needs investigation and responsibility fixed.
2.5 Irregular award of work for installing Carneted Shed and Iron Angle base for Godown.
KVK considered the quotations received after the due date and rendered the purchase irregular. Secondly, overwriting of rates and rounding off of rates of only one firm indicates that the rates were tempered with to favour a particular firm.
2.6 Improper planning for construction of Fish Pond wastage of fund amounting to Rs. 23,000/-.
The construction of a Fish Pond was completed in KVK on 4.4.96 with a cost of Rs. 23,000/- by M/s. Panth and sons, Sironj.
It seems that KVK has not made any soil test before construction of Fish Pond which resulted unfruitful expenditure of Rs. 23,000/- thereby resulting loss to KVK. Reasons for this unfruitful expenditure may be elucidated to audit.
Issues relating to tampering with records/quotations, unauthorised use of office vehicle and improper maintenance of log book, irregular purchases, improper maintenance of revolving fund and FLD accounts, encroachment of KVK land and theft cases, improper maintenance of service books and idle equipments, etc.
3.1 Tempering with the records/quotation to favour particular firms.
Limited quotations were collected by the KVK and have frequently been tampered with by the way of over writings in the rates quoted by the firms and also in the dates of quotations as has been observed in printing of KVK booklets and envelopes, purchase of book case (Almirah), purchase of Almirah, purchase of photophone overhead projector, purchase of cycle and purchase of electric wire.
3.2 Irregular purchase of Electronic Typewriter
Irregularities were committed in purchase of electronic typewriter of Godrej Brand from M/s. Rainbow Bhopal for Rs. 28,259/- the purchase price of electronic typewriter neither match with the quotations of M/s. Rainbow, Bhopal nor with the comparative statement.
3.3 Irregular purchase of Cultivator (Punja)
KVK purchased the Cultivator from the firm M/s. Raghuvansi Tractor @ Rs. 5000/- from whom the quotation was not taken. Thus, the purchase was irregularly made in contravention of GER
3.4 Unauthorised use of office vehicle & improper maintenance of Log Book
KVK has not given any attention for maintaining the log book of vehicle properly. No average calculation was made in log book and cutting overwriting made in the log book were not authenticated by incharge of the vehicle. Excess expenditure incurred from 1993-94 till 1999-2000 is amounting to Rs. 2,37,339.34, Clarification is required.
3.5 Irregular purchase of Philsystem Photophone & Other Audio equipments costing Rs. 22,000/-
KVK, Sirojj purchased Philsystem Photophone & Other Audio Equipments for Rs. 10,452/- and 11,548/- respectively from M/s. Lal Gramophone Radio Co., without any requisition/indent/ justification/prior admn. approval/expenditure sanction. Even no supply order was placed with M/s. Lal Gramophone Radio Co. in writing.
3.6 Purchases made without calling for limited quotations
Regarding purchases of battery (Rs. 2300), spare parts for tractor (Rs. 1830), engine oil and spare parts (Rs. 1468), electric terms (Rs. 3223), Seed treatment chemicals (Rs. 2335), potato seeds (Rs. 3860 and Rs. 1560), and stationary (Rs. 3059), no prior administrative approval and expenditure sanction was obtained in violation of GFR as all the purchases costing Rs. 1000/- and above were required to be made through limited quotations. Stock entry has also not been reflected on the bills.
3.7 Improper maintenance of revolving fund & FLD accounts.
Revolving Fund has been used for approach road work during 94-95 and purchase of tubewell in the year 1996-97 instead of incurred the same from the head ''farm development'' and an excess expenditure of Rs. 1,26,889.49 has been incurred upto 2000-2001. Further, KVK reinvested the fund without taking the approval of the Council.
The FLD records pertaining to material were not maintained properly. It is observed that the vouchers/bills pertaining to payment of pesticides/ fertilizer etc. were not having the signature of the recipient even the cash payment were made to them.
3.8 Encroachment of KVK land and theft cases.
KVK has not taken any action against the villagers who had constructed house in the KVK land. 16 Pipe length 20 Ft. x 2 1/2 wide, 50 kg. of makka and the deck of the KVK jeep were stolen. The KVK has lodged complaint but no further action has been taken in this regard.
3.9 Improper maintenance of service book.
On scrutiny of service books, lots of lapses such as entries related to leave account BI HPL, initial appointment, date of birth, qualification, address, identification marks, photograph of official, etc. were found incomplete including cuttings and over writing. The service books have not been presented to individual officer/employee for annual verification.
3.10 Idle equipment
The KVK has purchased a Casing for tubewell on 24.12.1996 at the cost of Rs. 11,008/- which is lying idle in the store since its purchase resulting wasteful expenditure and loss to KVK. Reasons thereof need to be elucidated to audit.
A copy of inspection report on the accounts of Krishi Vigyan Kendra, Sironj, Vidisha, M.P. is being enclosed herewith. From the aforesaid, it is clear that SMMVS officers in furtherance of the common intention dishonestly, fraudulently misappropriated property. SMMVS officers in furtherance of the common intention has committed criminal breach of trust, cheating and falsified accounts.
Kindly lodge FIR against the President, SMMVS, Sironj, Vidisha, Madhya Pradesh.
From the perusal of the aforesaid report, it is clear that the police registered FIR, which is sent to it as draft FIR by the ICAR. It is based on the basis of the audit inspection report conducted by the audit team. The petitioner has submitted a detailed reply against the aforesaid audit inspection report, a copy of reply has been filed alongwith list of documents.
The President of the petitioner society belongs to Congress Party and the complaints were made by the local MLA and M.P., who were at that time member of Bhartiya Janta Party. As mentioned earlier in this order, the committee of high officials enquired the allegations and did not find any illegality in its report. The FIR is based on the basis of the audit report.
Hon''ble Supreme Court in the case of Chandran Ratnaswami Vs. K.C. Palanisamy and Others, has considered the principle and question that when continuance of criminal proceedings will amount to abuse of process of the court and has held as under:-
The doctrine of abuse of process of court and the remedy of refusal to allow the trial to proceed is well-established and recognised doctrine both by the English courts and courts in India. There are some established principles of law which bar the trial when there appears to be abuse of process of court.
Loard Morris in Connely v. Director of Public Prosecutions, observed: (AC pp. 1301-02)
There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.... a court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.
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The power (which is inherent in a court''s jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice.
In his separate pronouncement, Loard delvin in the same case observed that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial.
In Hui chi-ming v. R., the Privy Council defined the word "abuse of process" as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case.
In the leading case of R. v. Horseferry Road Magistrates'' Court, ex p. Benner, on the application of abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances:
(i) where it would be impossible to give the accused a fair trial; or
(ii) where it would amount to misuse/ manipulation of process because it offends the court''s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
In R. v. Derby Crown Court, ex p. Brooks, Lord Chief Justice Ormrod stated:
It may be an abuse of process if either (a) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable.
Neill, L.J. In R. v. Beckford (Anthony), observed that:
The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities: (a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried.
What is unfair and wrong will be for the court to determine on the individual facts of each case.
This Court in State of Karnataka v. L. Muniswamy, observed that the wholesome power u/s 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case: (SCC p. 703, para 7)
7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court''s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
This case has been followed in a large number of subsequent cases of this Court and other courts.
In State of Haryana v. Bhajan Lal, this Court in the backdrop of interpretation of various relevant provisions of Cr.P.C. under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers u/s 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: (SCC p. 379, para 102)
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
This Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque observed thus: (SCC p. 128, para 8)
8....It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash may proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
In India Oil Corpn. v. NEPC India Ltd. this Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court noticed the prevalent impression that civil law remedies are time-consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that: (SCC p. 749, para 13)
13....Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discourages.
In Inder Mohand Goswami v. State of Uttaranchal this Court after considering series of decisions observed: (SCC pp. 16-17, paras 46 & 50-52)
The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible not desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts u/s 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.
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Civilised countries have recognised that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice-liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law.
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of a individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.
Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of a individual for a certain period, only then the non-bailable warrants should be issued.
In G. Sagar Suri v. State of U.P., this Court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature.
In S.N. Sharma v. Bipen Kumar Tiwari, AIR at p. 789, para 7, this Court has stated thus: (SCC pp. 658-59, para 11)
11....It appears to us that, thought the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for folding that such a power must be read in Section 159 of the Code.
In State of W.B. v. Swapan Kumar Guha while examining the power of a police officer in the field of investigation of a cognizable offence, Chandrachud, C.J. Has affirmed the view expressed by Mathew, J. and observed as follows: (SCC p. 577, para 22: AIR p. 958)
There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code.
In Uma Shankar Gopalika v. State of Bihar this Court has held as under: (SCC pp. 338-39, para 6-7)
Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/ 120-B IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000, they would pay a sum of Rs. 2,60,000 to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to the claim of Rs. 4,20,000. It is well settled that every breach of contract would not give rise to an offence of cheating an only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. It the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence u/s 420 IPC.
In our view petition of complaint does not disclose any criminal offence at all must less any offence either u/s 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers u/s 482 Cr.P.C. which it has erroneously refused.
From the judgment of the Hon''ble Supreme Court quoted above, it is clear that the criminal prosecution could not be used as an instrument of harassment or for seeking private mandate or with an ulterior motive to pressurize the accused. There is power to the police under the Criminal Procedure Code to investigate the case but in a appropriate case an aggrieved person can always seek remedy by invoking the jurisdiction of the High Court under Article 226 of the Constitution and if the High Court could be convinced that the power of investigation has been exercised by the Police Officer malafidely, High Court can always issue a writ. Hon''ble Supreme Court further observed that unlimited discretion can become a ruthless destroyer of the personal freedom. In the present case earlier a committee of eminent persons constituted by I.C.M.R. enquired the same allegations of then MP and MLA from that constituency and the committee in its report did not find the allegation true. The report has been quoted in this order and thereafter on the basis of the audit report the FIR has been lodged and the FIR is the verbatim which has been forwarded to the police as per the audit report. It is a copy of the audit report. The case is pending since 2003. The petitioner has made detailed reply to the authority in regard to the objection of the audit report. This court stayed the proceedings vide interim order dt. 18.3.2004 and since then investigation has not been progressed.
In my opinion, when the allegations have been levelled against the person of the rival party, the complainants are of one set of party and the petitioner is the member of other party, then it is obligatory on the police to enquire into the allegations prima facie and find out the truth into the allegations and then if in preliminary investigation conducted by the police considering the objection raised by the petitioner in his reply and also earlier report if investigating agency comes to the conclusion that any illegality has been committed, then it could register the FIR. It would safeguard unnecessary harassment of the petitioner. The allegations may be true or the allegations may be made due to rivalry in politics. It assumes importance when a committee of higher officials enquired the allegations and found that there were no illegalities. In this view of the matter, this writ petition is disposed of with the following directions:-
(i) That the registration of FIR against the petitioner vide Crime No. 220/03 at Police Station Sironj, District Vidisha is hereby quashed. Police authority and investigating officer can enquire the allegations treating the report as complaint and after considering the objections of the petitioner and also the earlier report submitted by the authority and after giving further opportunity to the petitioner to submit cogent evidence on record to the police controverting the report if the investigating authority comes to the conclusion that still some offence is made out or the petitioner has committed offence, then the agency is at liberty to register the FIR and proceed in accordance with law.
No order as to costs.