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Pull out contractual staff from anti-graft investigations: HC to ACB
Haryana Police Act defines an officer to be a member of the police service and includes IPS officers, it does not authorise engagement of a police officer on contract basis
The Punjab and Haryana high court (HC) has ordered the Haryana Vigilance Bureau, also known as anti-corruption bureau (ACB) to pull out private individuals engaged on contract from investigation, putting a stay on the chargesheet filed by such private individuals.
The HC was hearing a petition by Indian Revenue Service (IRS) officer Dheeraj Garg who had challenged the investigation in a first information report (FIR) and a chargesheet filed under the Prevention of Corruption (PC) Act and Indian Penal Code on the grounds that the investigating officer Ramaswamy Parthasarathy (designated as deputy superintendent of police, ACB), a retired Central Bureau of Investigation (CBI) officer, engaged by the ACB, was not legally authorised, competent or empowered to perform the official duties of the investigating officer.
Justice Vinod Bhardwaj in his November 7 order said that vital questions as to whether investigating officers could be appointed to the rank of superintendent of police (SP) and deputy superintendent of police (DSP) by way of contract and whether they were authorised to conduct investigation and file charge-sheet have arisen for the consideration of the court.
The court said that considering the circumstances and their impact on the entire proceeding, it is deemed expedient that the investigation handed over by the Haryana Vigilance Bureau to the persons engaged on contract basis shall henceforth be withdrawn with immediate effect till further orders. “The chargesheet filed by the contractual engagee as the investigating officer shall not be proceeded any further and the proceedings therein shall remain stayed till the next date of hearing,’’ the court said, posting the matter to December 16.
The petitioner Dheeraj Garg had contended that the chargesheet in question had been submitted in court under the signatures of retired investigating officer Ramaswamy Parthasarathy and counter-signed by another retired officer designated as SP Seshan Balasubramony.
The petitioner said that these officers having retired from the Central government in 2022 had been engaged on contractual basis as consultants to guide the ACB investigating officer (IO). However, instead of guiding the IO, the contractual employees have not only conducted the investigation and filled up the case diary but have also filed the final report under Section 173 (8) of Code of Criminal Procedure.
“Retired police officials, not being legally authorised, competent or empowered to perform the official duties of the IO and not being police officers under the Haryana Police Act, 2007, or empowered under the Prevention of Corruption Act, 1988, could not have conducted the investigation in the matter. The contractual appointment on the post of SP and DSP runs contrary to the independence of the investigating agency and such contractual appointment at the rank of SP and DSP is impermissible under the Police Act since appointment to police service can only be done either by way of direct recruitment; by promotion or by deputation,’’ the petitioner contended.
Proposal changed arbitrarily by ACB
The HC said that the proposal sent by the ACB director general to the chief secretary was for engagement of CBI officials on deputation basis. “The initial proposal did not suggest engagement of retired officers but in para number 5, a slash was used with serving/retired officers but was referred to as “engagement by way of deputation. The proposal was stated to have been approved. The subject specified the proposal to be for deputation of CBI Officers in the State Vigilance Bureau. Notwithstanding that the proposal was initially sent for engagement on deputation, the subsequent letter arbitrarily substituted the word deputation for engagement. By virtue of a change of the aforesaid nomenclature, the file was sent to the government to engage retired officers from the CBI in the rank of SP/DSP on contract basis. The said proposal related to their engagement as outsourced consultants,’’ the court said.
“Even though the persons so engaged were to work as consultants on a fixed honorarium of Rs. 50,000 per month as outsourced officers, the terms of engagement were then sought to be modified to engage them at the rank of SP and DSP on the minimum basic pay plus allowances. It was approved on April 9, 2022,” the HC said.
The court said that the rank of SP in Haryana is assigned in the cadre of All India Services (Indian Police Services). It is incomprehensible to perceive that appointment to the post of an IPS cadre is being made on a contractual basis, more so when the state is not competent to make appointment to the substantive post itself.
The CrPC confers the powers to investigate the cognizable case on the police officers and they are required to submit a report on completion of investigation under Section 173.
“The expression police officer has not been defined under CrPC. However, the Haryana Police Act, 2007 defines a police officer to be a member of the police service of the state constituted under the Act and included the IPS officer of the state cadre. Hence, a police officer competent to investigate and file a final report is required to ex-facie satisfy his status and test as a police officer under the Haryana Police Act. For a person to be a member of the police service, he has to be in the cadre as per the service jurisprudence since police service means the service constituted under this Act. The Police Act does not approve or authorise engagement of a police officer on contract basis.
The PC Act, 1988 mandates that in relation to the offences arising out of it, the investigation is not to be conducted by an officer below the rank of DSP i.e. a gazetted officer,’’ the HC said.
