Mohinder Verma
JAMMU, Mar 5: In an interesting development, Jammu and Kashmir State Accountability Commission (SAC) has filed Letters Patent Appeal (LPA) challenging the judgment passed by the Single Judge on January 4, 2013 whereby it was held that Commission doesn’t have the powers to take suo-moto cognizance in any complaint, grievance or allegations and Regulation 9 framed by the Commission was declared as ultra-virus.
In the LPA filed through Senior Advocate Sunil Sethi and Advocate Veenu Gupta, it has been stated that Section 3(1) of the J&K Accountability Commission Act states that the Commission will conduct investigation and enquiries in respect of the complaints under the Act but it doesn’t refer to the written complaints only.
“Section 9(1) of the J&K Accountability Commission Act clearly lays down that the jurisdiction of the Commission is not confined only to the complaints but the Commission has been vested with the power to investigate any action, which is taken by or with the general or specific approval of the public functionary”, the LPA said, adding “Section 3 defining the establishment of the Commission has to be read along with Section 9 of the Act which deals with the jurisdiction of the Commission whenever question arises about the powers and jurisdiction of the Commission and the nature thereof “.
Similarly, a reference to Section 11 of the Act lays down that a complaint can be filed under the provisions of the Act only in case allegations or any case of grievance (which is the position before the amendment as the case under reference was before the subsequent amendment in the Act). “This makes it clear that no complaint is required in case of action as the Commission has jurisdiction to investigate any action and jurisdiction cannot be made subject to the provisions of Section 11 of the Act”, the LPA said.
“In order to regulate its working the Commission has framed Regulations by virtue of Section 31 of the Act and Regulation 9 provides for taking suo-moto cognizance by the Commission in the cases wherein the investigation/enquiry is required to be done”.
“Sub-Section (1) of Section 31 of the Act clearly shows that the Regulations could have been framed by Accountability Commission for carrying out the parties of the Act and because Section 9 dealing with the jurisdiction of the Commission, refers to its power to investigate any action as Such Regulation 9 which has been framed as per the powers vested with the Commission under Section 31 is within the confines of its authority”, the LPA said.
Seeking setting aside of the Single Judge Judgment dated January 4, 2013, the LPA said, “the Single Judge has not appreciated the controversy in the right perspective about the jurisdiction of the Commission but has gone on entirely irrelevant points urged before the Court about the scope of penalties to be imposed in case of false and frivolous complaints. The findings of the Single Judge that in case of suo-moto action, the provisions of the Act so far as penalties for malafide complaints will become redundant are absolutely irrelevant as in case of suo-moto action by the Commission, it cannot be presumed under law that the exercise of the powers of Commission was actuated by malafides. Such mechanism of penalty may be required in case of individual who is filing a complaint but cannot be pressed into service in case of suo-moto powers”.
Stating that Accountability Commission has been constituted to ensure that there is no corruption at the high-ups and to ensure that society becomes corruption-free to the extent it is provided in the Act, the LPA said, “it is necessary to presume that such powers to the Accountability Commission to take suo-moto action which otherwise is justified as per the provisions of Section 9 of the Act read with Section 31 and Regulation 9”, adding “this aspect of the matter has not at all been considered by Single Judge in true and right perspective resulting in passing of the judgement”.
“Though Accountability Commission is not a court in strict sense of the word but certain powers of the courts are vested with it under the provisions of the Act as such the presumption of there being inherent power with the Commission cannot be denied at the face of it”, the LPA said, adding “moreover the Commission has the express power of taking suo-moto cognizance as per Section 9 of the Act. The Commission also has implied powers of taking suo-moto action even in the absence of Regulation 9 by mere reading of Section 9, Section 13 read with Section 31 of the Act”.
“The Single Judge has further failed to appreciate that Commission in terms of Section 9 of the Act is fully empowered to investigate any action which is taken by or with the general or specific approval of the public functionary as defined in Clause 16 of Section 2. Moreover, Section 11 and 13 of the Act don’t limit the jurisdiction of the Commission”, the LPA said, adding “the Legislature while using the expression ‘action’ has made it clear that action must not necessarily have a complaint detailing the allegations before it. The Commission can look into any action like decision, recommendations or finding as also failure to act on part of public functionary on its own without there being any allegation leveled in a complaint against such public functionary”.
Stating that Single Judge while passing the order impugned has totally ignored the legal position that Sub-Section 2 of Section 31 is illustrative in character and doesn’t control Sub-Section (1) of Section 31 that gives the Commission power to make regulations for carrying out the purpose of the Act, the LPA said, “Regulation 9 doesn’t infringe or go beyond any of the provisions of the Act and has been validly used by the Commission to initiate suo-moto proceedings against the public functionary”.
“Viewed from any angle, the judgment impugned passed by the Single Judge is totally contrary to the provisions of law therefore the same deserved to be quashed”, the LPA said.
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