Court discharges then ACD Rajouri in alleged illegal appointment case

08/08/2024

Jammu, Aug 7: In a set-back to ACB, Special Judge Anti-corruption Rajouri-Poonch Meh-mood Chowdhary discharged Noor Alam then ACD Rajouri and 72 others in alleged illegal appointment case.
While discharging the alleged accused persons, Special Judge Anti-corruption Rajouri-Poonch Mehmood Chowdhary observed that in all the districts of State, the appointment has been made by all the ACD's or other Officers under the circular issued by the Rural Depart-ment whereas in many of the districts, similar type of appointments have been made in the department and not followed the above guideline and circular but no such case has been registered against any of the official or officer or Assi-stant Commissioner Develo-pment or against any of the officers of Rural Development Department. The IO concluded in his final report produced before this court that the Government has disengaged all the supported staff who have been appointed illegally without following the circular issued by the Rural Devel-opment Department, in all the districts of State. As per the Govt. Order No. 203-RD & PR of 2018 dated 9.8.2018, the Secretary to Government, Department of RD & PR has made an order and disengaged the contractual engagements made under the MGNREGA and in the order, the same is reproduced herein under: "In order to streamline/rationalize the existing contractual enga-gements made under MGNREGS in accordance with Mahatma Gandhi NREGA guidelines, it is hereby ordered that all the engagements made under the scheme in contravention to rules/ norms/guidelines in vogue and without following due procedure shall be discontinued with immediate effect. The Deputy Commi-ssioners shall submit an action taken report in the matter within fifteen days. By order of the Government of Jammu and Kashmir". Sd/- (Sheetal Nanda) IAS Secretary to Government Department of RD & PR.
Court further observed that As per the order issued by the Government, it is clear that in all the districts, the contractual engagements were made in contravention of rules, norms and guidelines and without following the due procedure. In all such engagements, the government has disengaged all the contractual employees.
Court further said that so same is the case in the district Rajouri also and in this district, the contractual engagements which were made without following due procedure has been discontinued. But on the basis of this engagement order made by the Govern-ment, instant FIR was registered against the accused no. 1 and investigation has come to the conclusion that accused no. 1 has misused his official position and made the contractual appointments in violation of the Circular and guidelines as prescribed.
Court further observed that it is astonishing that no FIR has been made in any of the districts except the Rajouri and that too only against the accused no. 1 the FIR has been registered for misuse of his official position.
Abuse of the official position: The word official position is severe form of misuse means to use improperly. The word misuse can be expressed as use improperly. The word misuse without criminal intention does not constitute an offence but abuse is misuse with criminal intention or dishonesty. Section 24 of the IPC/RPC defines the word dishonesty.
"Whoever does anything with intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly". The wrongful gain and wrongful loss is defines in Section 23 of RPC. Wrongful gain:- wrongful gain is the gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss:- wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully or losing wrongfully:- A person is said to be gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as such person is deprived of property. So in this case there is no wrongful loss caused to the state and also that there is no wrongful gain by the accused no. 1 and all the other accused no. 2 to 73.
Court further observed that this Court is fortified my opinion on the basis of ratio of judgment Krishan Kumar V. Union of India. As per the definitions of wrongfully loss and wrongfully gain, it has come into fore that the action of the accused persons, is amounts to procedural lapse rather than the abuse of process of official position.
Court further observed that in the investigation, the element of illegal gratification has not been established against the accused no. 1. The act of the accused no. 1 engaging the supporting staff in MGNREGA scheme is not in the interest of any individual and it is the interest of the public at large that the supporting staff required to be engaged in the MGNREGA scheme for running in the Rural Develo-pment Department. The supporting staff had actually worked in the department and the department has paid remuneration against the work, the alleged accused no. 2 to 73, rendered.
Moreover the accused no. 1 has not engaged the staff against any non existing vacancies, the vacancies were in the department under the scheme and accordingly the engagements were made. When it come into the notice of department that number of such engagements have been made in the department in all the districts of then State of J&K (now U.T.) in violation of circular. The Government has disengaged all such engagements but no such FIR has been registered by the ACB in any of the districts of J&K except Rajouri, Court said.
Court further observed that not a single witness has deposed anything about some illegal or corrupt practice, dishonest intention, demand or acceptance of illegal gratification by the accused no.1. None of the witnesses talks about any conspiracy or payment of any illegal gratification by the accused 2 to 73. The record seized in the case is the personal files and engagement orders of the accused 2 to 73 and the engagement of these accused by the accused no.1 is an admitted fact and not denied by the accused. What has been denied is that there was any such infraction or illegal or corrupt means adopted by the accused no.1 which could attract the provisions of section 5(1)(d) of the PC Act 2006 and I have not found any such evidence on record which could establish that the accused no.1 resorted to corrupt or illegal means or has otherwise abused or misused his official position to obtain for himself or for any other person any valuable thing or pecuniary advantage. There is not a murmur in the statements of all the 29 witnesses about any conspiracy hatched by the accused no.1 with the other accused/beneficiaries to cause any loss to the Govt. Exchequer. The amount which is shown as loss to the State Exchequer i.e. ^-70,77,989/- is admittedly the salary which the accused have received during their engagement for the work done by them and under no circumstances the salary component can be taken a illegal pecuniary benefit as held by Supreme Court and Kerala High Court in the judgments mentioned supra.
So on the basis of discussion, observation and law on the subject, Court is of the considered opinion that there is no material in the charge sheet and also on the statement of witnesses to suggest that the accused no. 1 by entering into conspiracy with the accused no. 2 to 73 awarded undue benefit to them and conferred loss to the state exchequer or accused no. 1 has demanded and accepted any illegal gratification for himself from any of the beneficiaries or person any person related to beneficiary.
The offence under section 5(1) (d) read with 5(2) J&K PC Act Svt.2006 and 120 B RPC prima facie have not been made out against the accused and it is a futile exercise to frame the charges against the accused persons. Moreover, if the charges are to be framed and whatever the evidence has been recorded during investigation if remain unrebuttal in the trial even then there is no scope for conviction under the offence under section 5(1) (d) read with 5(2) J&K PC Act Svt.2006 and 120 B RPC .
In view of the above facts and circumstances, the accu-sed no. 1 to 73 are accordingly discharged from the offences u/s 5(1) (d) read with 5(2) J&K PC Act Svt.2006 and 120B RPP. Court ordered. JNF

Photo Gallery

BSE Sensex

NSE Nifty