JKJ 2007 (2) J-2

State Accountability Commission, Act 2002 Its Jurisdiction, And Lagal Validity Of The Provisions As Contained In the Act.

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Object & Scope:

With a view to provide just, responsive and clean administration, it is necessary to have such institution, which may enquire into the allegations and grievances against public men and persons holding civil posts in the State. With this object, Jammu and Kashmir Accountability Act 2002 came to be enacted. This Act has been extended to whole of the State of Jammu and Kashmir. The Act was published in the Government Gazette dated 16-12-2002 after receiving the consent of Governor on 13-12-2002 and came into force w.e.f 25-01-2003.

Powers of the Commission:

The Act provides unfettered powers to the Commission to entertain complaints filed under section 11 relating to the allegations, in relation to public functionaries, of corruption, favoritism, nepotism or lack of integrity; discharge of functions by personal interest or improper or corrupt motive; and abuse of misuse of his official position by public functionaries. After holding the proceedings as prescribed under section 13 & 14 the commission will submit its findings to the Government or the Competent authority with the recommendations to impose penalty on the functionary, who will have to implement the same within 90 days under intimation to the Commission.

The Commission has the power to frame its own regulations/procedure to carry out the provisions of the Act. The proceedings before the Commission shall be deemed to be judicial proceedings within the meaning of section 193 of State Ranbir Penal Code, Samvat 1989.

Constitutional validity of certain provisions:

Under section 9 of the Act The Commission may investigate any action which is taken by or with the general or specific approval of a public functionary as defined in clause (16) of section 2; under section 20 the Commission has and can exercise the same jurisdiction, power or authority in respect of Contempt of itself as a High Court has and for that purpose, provisions of Contempt of Court Act 1997 subject to some modifications shall be applicable; under sub-section (3) & (4) of section 20 the Competent authority whom the report is forwarded, is bound to communicate the Commission within a period of 90 days from the date of receipt of recommendations of the action taken or proposed to be taken on the report. The competent authority without any further inquiry has to take action on the basis of recommendations. Under sub-section (6) if the Commission not satisfied with the reply, it will make special report to the Governor etc. Some of the provisions of the Act are vague, arbitrary and being silent on the procedural safeguards provided to the public servants viz a viz balancing of the principles of natural justice and needs consideration, which are given below:

1. A perusal of the Act reveals that there is no provision of appeal against the order passed by the Commission. Under Article 311of the Constitution of India read with section 126 of the State Constitution, certain procedural safeguards have been provided to the public servants but those safeguards are missing under Act, as such the provisions, which curtail the safeguards as guaranteed under the Constitution are ultra virus of the Constitution.

The ‘inquiry’ as envisaged under the provisions of the Constitution is not an empty formality or a ritual, but it is serious proceeding intended to give the officer concerned a chance to meet the charges and to prove his innocence. Such an inquiry is not criminal proceeding. The proceedings of departmental inquiry are not, strictly speaking, judicial proceedings, but rules of natural justice are applicable to these proceedings with as much as they apply to judicial proceedings. The principles regarding holding of inquiry have been crystallized by judicial decisions, which have been summarized by Apex Court in case Nand Kishore Prasad vs. State of Bihar, (1978) 3 SCC 366: AIR 1978 SC 1277 in the following words: —

(i) Disciplinary proceedings being quasi-judicial in character, therefore, the minimum requirement of the rules of natural justice is that tribunal should arrive at its conclusions on the basis of evidence i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by the Court in Union of India vs. H.C Goel, (1964) 4 SCR 718: AIR 1964 SC 364, “ the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to the regular criminal trials as to the disciplinary inquiries held under the statutory Rules”.

(ii) The second principle, which is a corollary from the first, that if the disciplinary inquiry be conducted fairly without bias or predilection, in accordance with the relevant disciplinary rules and Constitutional provisions.

(iii) Another provision under Article 311 of the Constitution is that a reasonable opportunity must be granted showing cause against the action proposed to be taken in regard to him. This provision is mandatory especially in cases of recommendation for dismissal, removal or reduction in rank. Under the Accountability Commission Act, there is no such provision; as such the Act seems to be ultra virus of the Constitution.

(iv) As is evident the Act gives arbitrary powers to the Commission to hold inquiry not only against public functionaries but against any person and make recommendation , which are as per provision binding in nature on the competent authority and the said authority has to submit compliance report without applying its independent mind to the said recommendations and without affording the delinquent employees an opportunity of being heard or any right of appeal or revision against that, which is referable to section 21 and 28 of the Act. The same being violative of Rights guaranteed under Article 311 of Constitution of India render the Act of 2002 contrary to the Constitutional structure.

(v) Under section 13 (3) of the Act, the period for completion of inquiry has been fixed as six months, however, the same can be extended for another six months, provided sufficient reasons are recorded by the Commission. The Commission has no authority as per provision of the Act to carry on the proceedings beyond period of one year as a whole. It has been observed that the provision is not being followed in letter and spirits. As a matter of fact if the period of one year that too if the period of six month is extended after giving reasons, expires, the further proceedings becomes null and void and non-est in the eyes of law.

(vi) The provisions of the Act are not only contrary to the safeguards provided under the Constitution but also are contrary to the Disciplinary/Civil Servants (Classification, Control and Appeal) Rules 1956.

Conclusion/Suggestions:

From the above discussions it is evident that the provisions of the Accountability Act 2002 are vague, arbitrary, repugnant to the disciplinary rules and also contrary to the Fundamental rights as well as safeguards guaranteed under the constitution of India, as such the provisions of the Act needs to be reviewed at the appropriate level.