# Zuhair Bin Saghir v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1086
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Writ-A No. 2894 of 2022
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zuhair-bin-saghir-v-state-of-u-p-ors-48407
- **Pages:** 12

## Headnote

A. Service Law - The Waqf Act, 1995 -
Section 51 - U.P. Vigilance Establishment
Act, 1965 - Section 2(2) - Urban Land
(Ceiling
Regulation)
Act,
1986
-
Prevention of Corruption (Amendment)
Act, 2018 - Sections 7 & 13(1) A read with
13(2) - I.P.C., 1860 - Sections 409 & 120B - Prevention of Corruption Act, 1988 -
Sections 19(3)(b), 7 & 13

The petitioner along with other revenue officers
were found involved in acts of corruption. The
petitioner contended that the Government
orders issued from time to time governing
enquiry on a complaint filed against the
government servant was not complied. The
Court, on perusal of government orders,
observed that it is always open for the
5 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
1087
competent authority/government to conduct
discreet enquiry on any information received
depending upon the nature of allegation. The
direction in the Government orders seeks to
protect the government servants from the
onslaught of frivolous complaints but that does
not mean that the government servants can
take shelter under the Government Orders to
escape enquiry and prosecution for their corrupt
acts. Any defect in the fact finding enquiry
would not vitiate the consequential vigilance
enquiry or order of sanction for prosecution
against the government officer, provided there
is, prima facie, material to support the
allegations against the government servant.
(Para 20)
Writ Petition Dismissed. (E-10)

List of Cases cited:-

## Text

_Characters 0–39,987 of 40,099. This is a partial read: ask again with offset=39987 for what follows._

1086 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 31st of May 2016 has been in vogue
in the State of U.P. since February 1983.
There is no denial of the fact that the
scheme is perennial in nature and as such
denial of regularisation in service to an
employee who is working in such a scheme
which is perennial in nature, in our
considered opinion, would amount to unfair
labour practice. Such a practice is not
expected from a modern employer like
State, that too, in a welfare State. Such a
practice is clearly exploitative for the
reason that the scheme is not time bound; it
has been continuing since 1985 and as on
date there is no likelihood of the scheme
being discontinued.

21. On the aforesaid counts, we find
that the reasons indicated by the appellantState authorities while passing the order
dated 19-09-2019 are not tenable.

22. For the reasons given and discussion
made above, this special appeal is disposed of
with the following directions and orders:-

(A) The order dated 19-09-2019
passed by the Executive Engineer (Minor
Irrigation),
Division
Raebareli
as
is
available at page 116 of this special appeal
is hereby quashed.

(B)
The
competent
authority
is
directed to reconsider the matter of
regularisation
of
the
respondent
in
accordance with rule 6 of 2016 Rules after
constituting the Selection Committee as
provided in sub-rule 3 of Rule 6 of 2016
Rules within a period of two months from
the date a certified copy of this order is
produced before the competent authority.

(C) Since we have quashed the order
dated 19-09-2019 as such the reasons given
therein will not constitute a valid reason for
denying the benefit of regularisation in
services to the respondent and when the
matter is considered afresh under this order
the Selection Committee shall only judge
the suitability as per the requirement of the
rule 6 of 2016 Rules.

(D) Judgement and order dated 21-092021 passed by learned Single Judge in
Writ Petition No. 604 (S/S) of 2021, shall
stand modified to the extent aforesaid.

23. There shall be no order as to costs.
----------
(2022)05ILR A1086
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 2894 of 2022

Zuhair Bin Saghir ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Hemant Kumar Mishra, Arti Ganguly

Counsel for the Respondents:
C.S.C.

A. Service Law - The Waqf Act, 1995 -
Section 51 - U.P. Vigilance Establishment
Act, 1965 - Section 2(2) - Urban Land
(Ceiling
Regulation)
Act,
1986
-
Prevention of Corruption (Amendment)
Act, 2018 - Sections 7 & 13(1) A read with
13(2) - I.P.C., 1860 - Sections 409 & 120B - Prevention of Corruption Act, 1988 -
Sections 19(3)(b), 7 & 13

The petitioner along with other revenue officers
were found involved in acts of corruption. The
petitioner contended that the Government
orders issued from time to time governing
enquiry on a complaint filed against the
government servant was not complied. The
Court, on perusal of government orders,
observed that it is always open for the
5 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
1087
competent authority/government to conduct
discreet enquiry on any information received
depending upon the nature of allegation. The
direction in the Government orders seeks to
protect the government servants from the
onslaught of frivolous complaints but that does
not mean that the government servants can
take shelter under the Government Orders to
escape enquiry and prosecution for their corrupt
acts. Any defect in the fact finding enquiry
would not vitiate the consequential vigilance
enquiry or order of sanction for prosecution
against the government officer, provided there
is, prima facie, material to support the
allegations against the government servant.
(Para 20)
Writ Petition Dismissed. (E-10)

List of Cases cited:-

1. Chandrika Prasad Yadav Vs St. of Bihar 2004
6 SCC 331

2. U.O.I. Vs Prakash P. Hinduja (2003) 6 SCC
195

3. Vineet Narain & Ors. Vs U.O.I. 1998 (1) SCC

4. H.N. Rishbud Vs St. of Delhi 1955 SCR 1150

5. Prabhu Vs Emperor AIR 1944 SC 73
6. Lumbhardar Zutshi Vs The King AIR 1950 PC
26
(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. Petitioner, by the instant writ
petition, has raised challenge to the order
dated 16 March 2022, passed by the first
respondent, Principal Secretary, Vigilance
Department,
Lucknow,
rejecting
the
representation of the petitioner pursuant to
the directions issued by this Court.

3. The facts giving rise to the present
writ
petition,
briefly
stated,
is
that
petitioner is a civil servant and at the time
of the alleged incident was posted as
District Magistrate, Moradabad. It appears
that a complaint dated 23 January 2017,
came to be filed for alleged corrupt
practices committed by the petitioner in
discharge of his duty, accordingly, decision
was taken to initiate vigilance enquiry and
criminal prosecution against the petitioner
pursuant to an enquiry report. Aggrieved,
petitioner approached this Court by filing a
petition being Writ Petition No. 32018
(M/B) of 2019. The relief claimed by the
petitioner, noted in the order of the writ
Court reads thus:

"This petition has been filed for
quashing the impugned open inquiry
report conducted by opposite party No.2
in
pursuance
of
the
unauthorized
complaint made by the opposite party
No.4, as contained in Annexure No.2 to
the
writ
petition,
contrary
to
the
government
orders
dated
9.5.1997,
1.8.1997, 19.4.2012 and 24.5.2012 which
is the basis of initiating the criminal
prosecution
against
the
petitioner,
submitted by opposite party No.2, before
opposite party No.1."

4. The writ petition came to be
disposed of directing the Chief Secretary
to decide the representation of the
petitioner in light of Government Orders.
The relevant portion of the order dated 08
January 2020 is extracted:

"In the present case, vigilance
inquiry has been conducted directly
without adhering to the provisions of the
Government Orders. The Government
Orders clearly mention that first of all the
complaints of the complainants should be
ascertained preferably it is a normal
procedure that class-I officers or other
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
officers who are holding responsible
posts, if a complaint is made against such
persons, an affidavit should accompany
the complaint. The first action is to be
taken by the disciplinary authority or the
appointing authority to the effect that a
show cause notice should be given and in
case it so pleases departmental inquiry
can be initiated. It is very interesting to
note that even in the complaint and the
impugned sanction order, the impugned
action taken by the opposite parties, the
charge is not very clear. There is no
charge of corruption, embezzlement or
any other financial loss to the State
Government. There has been no money
transaction, there is no allegation of
bribe, there is no allegation of any
nepotism or malafide intentions.

At this juncture, the petitioner has
submitted that his sole contention is on the
premise that he has never been given any
opportunity of hearing in the inquiry as it
was required in the departmental procedure
to explain his case. He has not been able to
produce relevant documents and the
judgments of Hon'ble Supreme Court.

The Court feels that interest of justice
will be satisfied if the petitioner is given a
chance to represent his case before the
Chief Secretary.

Accordingly,
we
direct
that
the
petitioner
will
move
a
detailed
representation before the Chief Secretary
annexing all the relevant documents
including the Government Orders and the
provisions of the Constitution, his defence
and the objections against the complainant
and his complaint. This shall be done
within a maximum period of fifteen days
from today.

In case, such a representation is
moved by the petitioner before the Chief
Secretary, U.P., he will examine it and pass
appropriate
speaking
orders
after
considering all the reasons which have
been enumerated in the representation. It is
provided that the opposite parties will not
proceed against the petitioner till the
representation is decided. The decision so
taken shall be communicated to the
petitioner.

With these observations the writ
petition stands disposed of."

5. Learned counsel for the petitioner,
while assailing the impugned order, has made
the following submissions: (i) that a vigilance
enquiry cannot be directly initiated on a
fictitious complaint bypassing the various
Government Orders issued from time to time
to protect the officers against malicious
complaint; (ii) that pursuant to Government
Order dated 14 April 1981, the complaint, as
far as possible, should be investigated by an
officer who is two rank higher; (iii) that on a
complaint made against a Class-I officer,
before taking cognizance of the matter, an
affidavit shall be called from the complainant
and after verifying and ascertaining the
identity of the complainant, the complaint
should be entertained; (iv) that the mandate
of Government Order dated 19 April 2012,
specifically
directs
that
the
earlier
Government Orders be strictly complied
before entertaining a complaint; (v) that in
view of Government Order dated 24 May
2012, it is mandated that departmental
proceedings should be initiated and if
culpability of the government officer is found
then in that event decision should be taken to
lodge F.I.R.; (vi) that Government Order
dated 6 August 2018, reiterated that the
complaints received against the government
officers should be dealt with as per earlier
Government Orders dated 9 May 1997, 1
August 1997 and 19 April 2012; (vii) that the
aforenoted Government Orders have not been
considered nor complied while deciding the
representation of the petitioner; (viii) that the
5 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
1089
State Government has adopted pick and
choose policy while dealing with the
complaints filed against the government
servants; (ix) that the basis for initiating
vigilance enquiry by lodging F.I.R. is a report
of
Senior
Superintendent
of
Police,
Moradabad,
obtained
flouting
the
Government Orders.

6. In rebuttal, learned Standing Counsel
submits that petitioner while posted as
District Magistrate indulged in acts of
corruption while discharging official duty,
which was duly enquired into by the Revenue
authorities and the Senior Superintendent of
Police, duly noted in the impugned order. The
Government Orders are directory and not
mandatory, in any case, upon discreet enquiry
and departmental enquiry petitioner has been
found of have indulged in corrupt practices in
discharge of his official function causing
huge loss to the State Exchequer. In the
circumstances, it is not open for the petitioner
to take recourse under the Government
Orders to escape the consequences. The writ
petition being devoid of merit and is liable to
be dismissed.

7.

Rival
submissions
fall
for
consideration.

8. The short question involved is as to
whether a vigilance enquiry can be initiated
on a complaint bypassing the various
Government Orders, issued from time to
time, by the State Government or in the
alternative whether the vigilance enquiry
initiated by the State Government would
vitiate for want of compliance of the
Government Orders dealing with complaints
received against the government servant.

9. I have perused the impugned order
with the assistance of learned counsel for
the parties. The impugned order is a
lengthy order and the objections raised by
the petitioner in both the representations
has been dealt with in detail. In para 8 of
the impugned order, it is noted that
petitioner
while
posted
as
District
Magistrate, Moradabad, from 22 September
2015 to 28 April 2015, pursuant to
directions of the Government, a six
member
committee
headed
by
the
petitioner
was
constituted
for
the
construction of a jail premises at 40.334
hectare. The committee submitted a report
to the State Government through, the
Divisional Commissioner, proposing that
land be purchased at four times the circle
rate at Rs. 97,80,000/- per hectare. In the
proposal at serial no. 14 gata no. 1168
(kha), admeasuring 1.319 hectare land was
included, however, no reference was made
that the land vested with Waqf Al Aulad. In
other words the land vesting with the Waqf
was made a part of the proposal for
purchase at the proposed rate, thereafter, an
order on the proposal was obtained by the
petitioner
misleading
the
Divisional
Commissioner.

10. In para 9 of the impugned order,
the objection of the petitioner that the
proposal identifying the land suggested by
the committee was duly approved by the
Divisional
Commissioner,
therefore,
petitioner alone is not responsible for any
irregularity or corrupt practice. The State
negated the contention of the petitioner, as
noted in the impugned order, that since the
committee
headed
by
the
District
Magistrate was assigned the role of
purchase of land, whereas, the Divisional
Commissioner
was
only
required
to
approve
the
rate
proposed
by
the
committee. The Commissioner has no role
in identification of the plots suggested by
the committee. The Commissioner was
misled as the property belonging to Waqf
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
and Sri Saumya Jain was included for
purchase, whereas, the properties of Waqf
and Sri Saumya Jain were situated outside
the proposed project. It is noted in the
impugned order that the property of the
Waqf is out side the project at about 500
meter to one kilometer distance. The
inclusion of the properties was willful and
deliberate at behest of the petitioner against
the provision of the Government Orders to
cause loss to the State Exchequer. It is
further noted in the impugned order that the
proposal was placed before the petitioner
by the revenue authorities on 23 January
2017, wherein, it was clearly indicated that
sale and purchase of the Waqf property is
prohibited under the Waqf Act, 1995. But
despite the objection property of the Waqf
was included in the proposal.

11. It appears from the facts noted in
para 12 of of the impugned order that the
revenue authorities prepared a report which
was false stating that the Waqf property and
that belonging to Sri Saumya Jain and
others are in the vicinity of the proposed
jail, whereas, the properties are situated
500 meter to one kilometer away from the
jail land. In para 13, it is noted that
petitioner
as
the
Chairman
of
the
committee approved and consented to the
illegal proposal that the land vesting in
Waqf can be purchased/exchanged which is
in violation of Section 51 of the Waqf Act,
1995. Thereafter, the properties belonging
to Sri Saumya Jain and others were also
initiated for purchase/exchange and the
entire process was completed hurridly with
seven days.

12. Aggrieved by the orders passed by
the subordinate revenue authorities (Sub
Divisional Officer) for purchase/exchange
of Waqf property came to be challenged by
the U.P. Sunni Central Board, in a petition
being Writ-C No. 3750 of 2018. This Court
observed and held that the exchange of
Waqf property could not have taken place
under the U.P. Revenue Code, 2006,
accordingly, directed an enquiry to be
conducted. Pursuant thereof, the order of
the Sub Divisional Officer came to be set
aside on rehearing the matter. It is noted in
para 15 of the impugned order that the
exchange of the land vesting in the Waqf
with the land of Sri Saumya Jain Trust and
others was illegal and was accordingly set
aside.

13. In para 16 of the impugned order
it is categorically noted that the revenue
authorities in their proposal submitted to
the
petitioner,
the
Chairman,
had
categorically noted that in view of the
provisions of the Waqf Act, 1995, the Waqf
land cannot be sold/exchanged. The land
vesting in Gram Sabha/Government land in
the same Gram Sabha could only be
exchanged.
Petitioner
willfully
and
deliberately did not bring to the notice of
the Divisional Commissioner that the
proposal approved by the committee
included the exchange/purchase of Waqf
property with the land belonging to Sri
Saumya Jain Trust and others. The land
proposed was located 500 meter to one
kilometer away from the project and was
small scattered plots. This fact was not
placed before the Divisional Commissioner.
In para 18 of the impugned order, the
vigilance enquiry was also ordered against
the then Sub Divisional Officer, Sadar,
District Moradabad, for his involvement in
the exchange of land in violation of the Act
2006.

14. In para 18 of the impugned order,
it is noted that after fact finding enquiry in
the incident an vigilance enquiry was
ordered. It is further noted that the U.P.
5 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
1091
Vigilance Establishment is the qualified
investigating agency and is competent to
enquire into the conduct of a government
servant in view of Section 2(2) of the U.P.
Vigilance Establishment Act, 1965. In para
23 of the impugned order, it is noted that
the U.P. Vigilance Establishment collected
sufficient documentary material, prima
facie, disclosing the culpability of the
petitioner in acts of corruption while
discharging official duty. In that event the
consequence is prosecution of the officer
under the Prevention of Corruption Act,
1988.

15. The impugned order further notes
that
while
disposing of
the
second
representation dated 16 August 2021, filed
by the petitioner, in para 4 it is noted that
under the Urban Land (Ceiling Regulation)
Act, 1986, the District Magistrate is
competent authority and on the direction of
the petitioner the then Additional District
Magistrate
(City),
Moradabad,
released/abated
the
property
without
hearing the Development Authority. After
vesting in the State the land was duly
transferred to the Moradabad Development
Authority way back in 1993. Thereby,
causing huge loss to the State Exchequer. It
is noted that the lands in dispute was
declared surplus in 1986, which was duly
taken into possession on 30 March 1990,
by the Supervisor Kanoongo, Pakwada and
Naib Tehsildar, thus, vesting in the State. It
is further noted in the impugned order that
this was done in connivance with the
owners
of
the
land
for
extraneous
consideration. In para 8, it is noted that the
subsequent District Magistrate on being
informed of the illegal proceedings, passed
orders
declaring
the
order
of
abatement/release
illegal,
thereby,
protecting the State from huge loss.

16. In para 9, it has been
categorically noted that the allegations of
corrupt practices against the petitioner has
been leveled upon a fact finding enquiry
and it is not based on the complaint of the
complainant Sri Dushyant Raj Chaudhary.
In para 15, it is admitted that on a
complaint the fact finding enquiry was got
conducted by the Senior Superintendent of
Police, Moradabad, and based on the
enquiry, an open enquiry was directed to
be
conducted
by
the
Vigilance
Establishment. In the open
enquiry,
sufficient material was collected with
regard to the culpability of the petitioner
and other revenue authorities, accordingly,
F.I.R. being Case Crime No. 1084 of 2018,
under Sections 7 and 13(1)A read with
Section 13(2) of Prevention of Corruption
(Amendment) Act, 2018, and Sections
409, 120-B I.P.C., was lodged with Police
Station Civil Line, Moradabad.

17. In para 16 of the impugned order,
it is noted that in compliance of the writ
Court order, before initiating prosecution a
committee
was
constituted
by
the
Divisional Commissioner, headed by the
Additional Commissioner (Administration),
alongwith Additional District Magistrate
(Administration), Moradabad, Additional
Secretary
Moradabad
Development
Authority, Moradabad. The committee
submitted a report on 1 August 2017, to the
Divisional Commissioner and the report
prima facie discloses that petitioner and
other revenue officers to be involved in
corrupt
practices.
Accordingly,
the
Divisional Commissioner vide order dated
3 August 2017, directed the District
Magistrate Moradabad, to lodge F.I.R. and
requested the State Government to take
appropriate action against the delinquent
officers, including, the petitioner. The
departmental enquiry was in terms of the
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
writ Court order and in compliance of the
respective Government Orders.

18. The crux of the argument of
learned counsel for the petitioner is that the
Government Orders issued from time to
time governing enquiry on a complaint
filed against the government servant was
not complied in the given facts. Hence, it is
urged that the directions for initiating
vigilance enquiry and prosecution is bad
not being in conformity with the mandate
of the Government Orders.

19. It would be apposite to peruse the
Government Orders being relied upon by
learned counsel for the petitioner, which
briefly stated, provides thus:

(a) Government Order dated 14 April
1981, addressed to all the Head of the
departments, directing that on receiving
complaint against a government servant, it
should be ensured that during the discreet
enquiry the copy of the complaint should
not
be
supplied
to
the
delinquent
government servant and neither the name
of the complainant should be disclosed.
Upon disclosure, the purpose of the enquiry
and secrecy gets compromised. In other
words, the delinquent employee should not
be made aware of the complaint or the
enquiry. If possible the enquiry should be
got conducted by an officer two rank
higher.

(b) Government order dated 9 May
1997,
is
addressed
to
all
the
Principal/Secretaries and Secretaries. The
Government order notes that against ClassI officers fraudulent and false complaints
are
being
received. Accordingly,
the
Government Order to safeguard the interest
of Class-I officers, inter alia, provides: (i)
complaints received on the letter pad of
Member of Parliament and/or Legislative
Assembly,
before
proceeding
on
the
complaint, the contents should be got
verified from the Members; (ii) on
complaints
received
from
other
sources/persons,
before
proceeding
to
enquire, an affidavit of the complainant and
the
material/evidence
in
support
of
complaint must be obtained.
(c) Government Order dated 01 August
1997,
provides
the
procedure
for
entertaining and acting on the complaints
of subordinate officers. The procedure is
similar to the Government Order dated 9
May 1997.
(d) Government Order dated 19 April 2012,
came to be issued on the directions of the
writ Court order passed in Kumdesh Kumar
Sharma Versus State of U.P. (Writ Petition
No. 4372(SS) of 2011) dated 3 January
2012. The Government directed all the
Secretaries/Head
of
departments/Commissioners
to
strictly
comply the Government Order dated 9 May
1997 and 1 August 1997 while dealing with
complaints received against government
servants. The direction was again reiterated
vide Government Order dated 6 August
2018.

(e) With regard to lodging of F.I.R. it
is provided in Government Order dated 19
July 2005, and reiterated by Government
Order dated 24 May 2012, that disciplinary
proceedings/departmental enquiry, in the
first instance, should be initiated against the
government servant and upon a prima facie
finding being returned in the enquiry with
regard to the culpability of the officer,
F.I.R. thereafter should be directed to be
lodged.

20.

On
bare
perusal
of
the
Government Orders, it is evident that the
directions/instructions provided therein is
to shield the government servant from
frivolous and false complaints. But, at the
5 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
1093
same time, the government orders nowhere
restricts the State authority from carrying
out a discreet/confidential enquiry having
regard to the nature of allegations made in
the complaint, though, the whereabouts of
the complainant, his identity or affidavit is
not available. It is always open for the
competent
authority/Government
to
conduct
discreet
enquiry
on
any
information received depending upon the
nature of allegations. Even in a case where
the complaint is not supported by an
affidavit
or
material
documents
the
Government is not prohibited to initiate a
fact finding enquiry. The directions in the
Government Orders, primarily, seeks to
protect the government servants from the
onslaught of frivolous complaints. But that
would
certainly
not
mean
that
the
government servants can take shelter under
the Government Orders to escape enquiry
and prosecution for their corrupt acts. It is
not open to the government servant to
contend that the vigilance enquiry would
vitiate for the reason of defect, either with
the
fact
finding
enquiry/departmental
enquiry initiated on a fictitious complaint.
The relevant consideration that would
weigh with the Government to direct
vigilance enquiry is that the fact finding
enquiry reveals prima facie culpability of
the
government
servant
in
acts
of
corruption.
The
mandate
of
the
Government Orders is directory and not
mandatory. It therefore follows that any
defect in the fact finding enquiry would not
vitiate the consequential vigilance enquiry
or order of sanction for prosecution against
the government officer, provided there is,
prima facie, material to support the
allegations against the government servant.

21. A provision in a statute is
mandatory if the omission to follow it
renders the proceeding to which it relates
illegal and void, while a provision is
directory if its observance is not necessary
to the validity of the proceeding, and a
statute may be mandatory in some respects
and directory in others. The difference
between mandatory and directory statutes is
one of effect only. If the violation or
omission is invalidating, the statute is
mandatory; if not, it is directory.

22. The Supreme Court of India has
been stressing time and again that the
question whether statute is mandatory or
directory is not capable of generalization
and that in each case the court should try
and get at the real intention of the
legislature
by
analyzing
the
entire
provisions of the enactment and the scheme
underlying it.

23. In Chandrika Prasad Yadav v
State of Bihar1, it was held that, the
question as to whether a statute is directory
or mandatory would not depend upon the
phraseology used therein. The principle as
regards the nature of the statute must be
determined having regard to the purpose
and object the statute seeks to achieve.

24. The principle, though applicable
to a provision of a statute, applied to the
Government Orders under consideration, it
is evident that the intent and purpose of the
Government Orders is to shield and protect
the Government servants from false and
vexatious complaints. The Government
Orders, however, do not mandate that in the
event of non compliance of the provisions
therein would vitiate the fact finding
enquiry, followed by the vigilance enquiry
and prosecution, provided there is material
to support the decision of the Government.

25. Further, the Government Order
dated
19
July
2005,
reiterated
by
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Order dated 24 May 2012,
provides that before lodging an F.I.R.
against
the
government
servant,
a
disciplinary
proceedings/departmental
enquiry should necessarily be conducted
and in the enquiry culpability of the
government servant is found only then
F.I.R. should be lodged. In the facts in hand
a
departmental
enquiry,
headed
by
Additional Commissioner was constituted
returning a prima facie finding with regard
to the involvement and culpability of
petitioner and other revenue authorities
noted in the impugned order. In any case,
as noted herein above, the tenor of
Government Orders is directory, therefore,
any defect in the fact finding enquiry or
departmental enquiry would have no
bearing
on
the
vigilance
enquiry/prosecution.

26. In Union of India v. Prakash P.
Hinduja2, though the facts therein are not
similar but an analogy can be drawn, the
Supreme Court rejected the argument that
since the directions issued by the Court in
Vineet Narain and others v. Union of
India3, was not followed by the CBI and
Chief Vigilance Commissioner (CVC)
before filing of the charge sheet, the
consequential proceedings of prosecution
would be a nullity. The Supreme Court
declined to quash the proceedings merely
on the defect of not complying the
directions.

27. The High Court held that in terms of
directions issued in Vineet Narain (supra),
CVC is not entrusted with the responsibility of
CBI function. CBI was to report to CVC about
all cases taken up by it for investigation;
progress of the investigation; cases in which
charge-sheets are filed and their progress. CBI
was bound to place the final results of its
investigation along with all material collected
before the CVC for the purposes of review.
CBI had not placed before the CVC the results
of its investigations and had by-passed it by
filing a charge-sheet before the Special Judge.
The High Court in view of the mandate in
Vineet Narain (supra) not being complied by
the CBI allowed the writ petition and quashed
the cognizance taken by the Special Judge and
all consequential proceedings. The Supreme
Court reversed the decision of the High Court.

28. In H.N. Rishbud v. State of Delhi4,
the Court was called upon to consider the
effect of investigation having been done by a
police officer below the rank of a Deputy
Superintendent of Police contrary to the
mandate of Section 5(4) of Prevention of
Corruption Act, 1947. The Court held as
follows:

"......Here we are not concerned with
the effect of the breach of a mandatory
provision regulating the competence or
procedure
of
the
Court
as
regards
cognizance or trial. It is only with reference
to such a breach that the question as to
whether it constitutes an illegality vitiating
the proceedings or a mere irregularity
arises.
A
defect
or
illegality
in
investigation, however serious, has no
direct bearing on the competence or the
procedure relating to cognizance or trial."

29. Supreme Court referring Prabhu
v. Emperor5 and Lumbhardar Zutshi v.
The King6, held that if cognizance is in
fact taken on a police report initiated by the
breach of a mandatory provision relating to
investigation, there can be no doubt that the
result of the trial, which follows it cannot
be set aside unless the illegality in the
investigation can be shown to have brought
about a miscarriage of justice and that an
illegality committed in the course of
investigation
does
not
affect
the
5 All. Zuhair Bin Saghir Vs. State of U.P. & Ors.
1095
competence and the jurisdiction of the
Court for trial.

30. Further, Sub-clause (3) (b) of
Section 19 of Prevention of Corruption Act,
1988, prohibits that no court shall stay the
proceeding under this Act on the ground of
any error, omission or irregularity in the
sanction for prosecution. Section 19 (3)(b)
is extracted:

"19. Previous sanction necessary for
prosecution.--(1) No court shall take
cognizance of an offence punishable under
sections 7, 10, 11, 13 and 15 alleged to
have been committed by a public servant,
except with the previous sanction 1 [save as
otherwise provided in the Lokpal and
Lokayuktas Act, 2013 (1 of 2014)]--

(a) ...........................

(3)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974),--

(a) ...........

(b) no court shall stay the proceedings
under this Act on the ground of any error,
omission or irregularity in the sanction
granted by the authority, unless it is
satisfied that such error, omission or
irregularity has resulted in a failure of
justice;"

31. In the given facts, it is noted in the
impugned order that on the directions of the
writ Court the departmental enquiry came
to be set up duly constituted by the
Divisional Commissioner, headed by the
Additional Commissioner, alongwith two
other members. On a prima facie finding
returned by the departmental enquiry
committee petitioner along with other
revenue officers were found involved in
acts of corruption in the discharge of their
functions
with
regard
to
purchase/exchange/release/abatement
of
parcel of land. The petitioner had misled
the Divisional Commissioner, as well as,
the
State
Government
in
purchase/exchange of land which included
Waqf land and land belonging to a private
trust.

32. The sale and exchange of waqf
property is prohibited under Section 51 of
the Waqf Act, 1995. Section 51 is extracted:

"51. Alienation of wakf property
without sanction of Board to be void.- (I)
Notwithstanding anything contained in the
wakf deed, any gift, sale, exchange or
mortgage of any immovable property which
is wakf property, shall be void unless such
gift, sale, exchange or mortgage is effected
with the prior sanction of the Board:
Provided that no mosque, dargah or
khangah shall be gifted, sold, exchanged or
mortgaged except in accordance with any
law for the time being in force.

Provided................."

33. The impugned order further flags
the incident of corruption committed by the
petitioner being the Chairman or the
competent authority under the Ceiling Act.
Further, in ceiling proceedings, the land that
had vested in the State upon possession and
subsequently transferred to the Moradabad
Development Authority was directed to be
released/abated in favour of the land lord for
extraneous consideration without notice to
the Development Authority.

34. Submission of learned counsel for
the petitioner that no pecuniary loss was
caused to the State Government as the
orders were subsequently reversed or
recalled would have no bearing.

35. As per Section 7 of the Prevention
of Corruption Act, 1988, any public servant
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
attempts to render service for gratification
other than legal remuneration in respect of
an official act or showing or forbearing to
show favour or disfavour in exercise of his
official function is punishable. Section 7 is
extracted:

"7.
Public
servant
taking
gratification
other
than
legal
remuneration in respect of an official
act.--Whoever, being, or expecting to be a
public servant, accepts or obtains or
agrees to accept or attempts to obtain
from any person, for himself or for any
other person, any gratification whatever,
other than legal remuneration, as a
motive or reward for doing or forbearing
to do any official act or for showing or
forbearing to show, in the exercise of his
official functions, favour or disfavour to
any person or for rendering or attempting
to render any service or disservice to any
person, with the Central Government or
any State Government or Parliament or
the Legislature of any State or with any
local
authority,
corporation
or
Government company referred to in
clause (c) of section 2, or with any public
servant, whether named or otherwise,
shall be punishable with imprisonment
which shall be not less than 1 [three
years] but which may extend to 2 [seven
years] and shall also be liable to fine.

Explanations.--(a) ......................

(b)
"Gratification."
The
word
"gratification"
is
not
restricted
to
pecuniary gratifications or to gratifications
estimable in money.

36. Further, Section 13 provides for
criminal misconduct by a public servant. If
a public servant habitually accepts or
agrees to accept gratification is said to have
committed
the
offence
of
criminal
misconduct. Section 13 is extracted:

13. Criminal misconduct by a public
servant.--(1) A public servant is said to
commit
the
offence
of
criminal
misconduct,--

(a) if he habitually accepts or obtains
or agrees to accept or attempts to obtain
from any person for himself or for any
other person any gratification other than
legal remuneration as a motive or reward
such as is mentioned in section 7; or

37. The impugned order reflects that
petitioner
was
habitual
in
accepting
gratification other than legal remuneration.
It is alleged that in purchase of land for
construction of jail and thereafter in ceiling
proceedings petitioner showed favour to
benefit
a
party
for
extraneous
consideration.

38. Further, under the Uttar Pradesh
Vigilance Establishment Act, 1965, the
State Government is competent to get the
offences investigated by a special police
force.

39. The Legislature enacted the
Uttar Pradesh Vigilance Establishment
Act, 1965, inter alia, to make provision
for the constitution, superintendence and
administration of the Uttar Pradesh
Vigilance Establishment as a special
police force.

40.

Section
2
provides
for
constitution and powers of the Vigilance
Establishment. Sub-section (1) reads
thus:

"Constitution and powers of the
Vigilance
Establishment.-
(1)
Not
withstanding anything in the police Act
1861,
the
State
Government
may
constitute a special police force to be
called the Uttar Pradesh Vigilance
5 All. Smt. Pooja Saxena & Anr. Vs. State of U.P. & Anr.
1097
Establishment for the investigation of
offences notified under the section 3.

(2) ......."

41. Section 3 confers powers upon
the Vigilance Establishment to investigate
the offences notified in the Gazettee by
the State Government. Section 3 reads
thus:

"3. Offences to be investigated by
the Vigilance Establishment.- The State
Government may by notification in the
Gazette, specify the offence or classes of
offences which are to by investigated by
the
Uttar
Pradesh
Vigilance
Establishment."

42. In exercise of powers conferred under
section 3 of Vigilance Act 1965, the
Governor of U.P. notified on 12 February
1965 the offences and class of offences
which may be investigated by the U.P.
Vigilance Establishment, which, inter alia,
includes offences punishable under the
Prevention of Corruption Act, 1988.

43. Having due regard to the facts and
circumstances of the case, the Staterespondents
are
justified
in
directing
vigilance enquiry and granting sanction for
prosecution. The finding of culpability of the
petitioner is writ large from the departmental
enquiry. The mandate of the Government
Orders have necessarily been complied. Any
defect in the fact finding enquiry, rank of the
officer or complaint being fictitious and not
supported by an affidavit would have no
bearing on the vigilance enquiry or the
sanction for prosecution.

44. The writ petition being devoid of
merit, accordingly, is dismissed.

45. No costs.
----------
(2022)05ILR A1097
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2022

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Revision No. 2162 of 2016

Smt. Pooja Saxena & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Dinesh Kumar Yadav, Sri Prashant
Kumar Singh, Smt. Pooja Saxena (In
Person), Rajni Ojha, Sri Ravindra Nath
Chaubey

Counsel for the Opposite Parties:
G.A., Sri Piyush Dubey

A.
Criminal
Law
-Code
of
Criminal
Procedure,1973-Section 397/401 & 125Quantum
of
maintenance-
Applicant
challenged
the
maintenance
amount
awarded by the Family Court-Wife was
required to sacrifice her employment
opportunity for nurturing family and she
has a son who is heart patient-Merely
because the wife is capable of earning is
not sufficient ground to reduce the
maintenance-Sustenance does not mean,
and cannot be allowed to mean mere
survival-Hence, the maintenance awarded
by the family Court is enhanced to Rs.
60,000/- from Rs. 35000/-25% of the
husband's net salary would be just and
proper to be awarded as maintenance to
the wife and son.

B. While dealing with the application of a
destitute wife or hapless children or parents
under this provision, the Court is dealing
with the marginalized Sections of the
society.