The judgment of the Orissa High Court in the case of Prakash Mishra has exposed the devious machinations that take place in the corridors of power. Very often, officers do not challenge the illegalities and malice meted out to them for extraneous reasons and for being upright and straightforward. While facing the crisis, the affected Government servant is very often isolated, and very few are normally prepared to come to his rescue. This is part of the systemic malady. The only hope for the wronged persons is the superior forum of the High Court and the Supreme Court.
Media has given quite a bit of attention to the judgment in the Prakash Mishra case. But the story, as it unfolds, has not been detailed out so far. It would be profitable to quote a few paragraphs from the judgment, and the contents thereof shall speak for themselves:
54. In the present case, no material has been produced by the Vigilance authorities to substantiate the allegation of criminal conspiracy against the present petitioners. Except the bald allegations made in the impugned FIR, none of the witnesses examined during investigation have even whispered anything about the prior meeting of mind and unlawful agreement between the two petitioners to constitute the offence of criminal conspiracy under Section 120-B I.P.C.
56. The records further reveal that during enquiry, the Enquiring Officer collected copies of documents from the Corporation, including the Special Audit Report and Annual Reports of the Corporation for the years 2006-07 to 2009-10. However, no witnesses were examined and no statements were recorded during the enquiry.
Further, no notice was issued to the petitioners providing them an opportunity to put forth their case. It is further seen that the Enquiry Officer issued requisitions vide letters dated 11.09.2014 to various manufacturers/suppliers of steel and cement, seeking information/documents relating to the advance received by them towards supply of steel and cement against different supply orders, supply of steel and cement against each supply order and to which site of the Corporation such supplies have been made, along with the vouchers and bills submitted at the site and acknowledgement receipt of such supplies.
57. The records further reveal that though all such requisitions had been sent to various manufacturers/suppliers of steel and cement vide letter dated 11.09.2014, seeking details of the advance received and supplies made by them to different sites of the Corporation, the Enquiry Officer has proceeded to conclude the enquiry on the very day and has submitted the final report on the same day, i.e. 11.09.2014, with the findings that the petitioners have abused their official position and shown undue favour to the suppliers by entering into criminal conspiracy, for which they are liable under Section 13(2) r/w Section 13(1)(d) of the PC Act and Section 120-B IPC and accordingly recommended for registration of criminal case against the petitioners for the said offences.
58. Further, as has already been noted above, during pendency of the preliminary enquiry, the Superintendent of Police, Vigilance Cell, Cuttack, vide his letter dated 08.09.2014 had sent a
questionnaire to the Home Department, which is the Administrative Department of the Corporation, seeking clarification on various points with regard to the working of the Corporation. However, before receipt of the same, the preliminary enquiry had been concluded and even the impugned FIR had been lodged.
59. There is nothing on record to show as to who considered the final report submitted by the Enquiry Officer and accepted the same, on the basis of which approval was sought for from the State Government for registration of criminal case against the petitioners. From the note sheet, it appears that approval of the State Government for registration of criminal case was received on 20.09.2014 and on the same day the impugned FIR has been registered against the present petitioners.
61. From the facts detailed above, there is no manner of doubt that the Vigilance authorities have proceeded in the matter with a predetermined agenda to implicate the petitioners, more specifically the writ petitioner Prakash Mishra, irrespective of whether any material is available to substantiate the allegations. The Enquiry Officer has conducted the preliminary enquiry in a most perfunctory manner, in brazen disregard of all established norms of justice and fair play.
The manner in which the preliminary enquiry has been conducted and method adopted by the Enquiry Officer in concluding the enquiry post-haste, without even verifying the relevant documents and examining any witness, clearly goes to show that he was bent upon implicating the petitioners and thereby facilitate registration of the FIR against them. Hence, the entire action of the Vigilance authorities smacks of arbitrary and mala fide exercise of power with the oblique motive to harass the petitioners and damage their reputation.
63. Detraction from a man’s reputation is an injury to his personality, and thus an injury to reputation is a personal injury, that is, an injury to an absolute personal right.65. It is thus amply clear that one is entitled to have and preserve one’s reputation and one also has a right to protect it. In case any authority in discharge of its duties fastened upon it under the law, travels into the realm of personal reputation adversely affecting him, it must provide a chance to him to have his say in the matter. In such circumstances, right of an individual to have the safeguard of the principles of natural justice before being adversely commented upon is statutorily recognised and violation of the same will have to bear the scrutiny of judicial review. (See – State of Maharashtra v. Public Concern for Governance Trust and Ors., AIR 2007 SC 777).
66. It is not very uncommon in our country that honest and upright public servants with unimpeachable integrity and having impeccable tract record are often hounded by the ruling political establishment for extraneous consideration. In the present case, what is more disturbing is that the Director, Vigilance, to whom the file was marked by the Chief Minister for conducting an enquiry, has abdicated his duty and responsibility by displaying studied indifference and allowing the Superintendent of Police, Vigilance Cell, Cuttack, to deal with the matter and entrust the enquiry to an officer of the rank of Deputy Superintendent of Police, in spite of the fact that the enquiry was being conducted against the writ petitioner, who was the former DGP of the State and is one of the senior most IPS officers of repute in the country, presently posted as Director General, CRPF, New Delhi. The action or rather the wilful inaction of the Director, Vigilance, in not ensuring free, fair and proper enquiry into the matter and allowing the report of a sham enquiry to be accepted and giving his consent for seeking approval of the State Government for registration of criminal case against the petitioners clearly shows that he was more concerned in exhibiting his loyalty to the ruling political establishment, akin to the old British adage of “more loyal than the King”.
It is a sordid story of malicious actions against an officer for no apparent delinquency on his part. The High Court, apart from delivering a landmark judgment on abuse of the process of the court, has also noticed the “right to reputation”, which has been accepted as part of the Fundamental Rights.
I leave it to the readers to draw their inferences. But the younger elements in the society have to wake up and tackle the virus. Taking immediate remedial measures is the inevitable need of the hour so that the vitals of the administrative set up are not permanently damaged by such ugly events. Persons who abused their powers and betrayed the related public trust have to be punished in the interest of the future of the social fabric. This does not involve any sectarian interest. This definitely concerns all of us!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. yantdas@hotmail.com)