Retd CBI sleuths as investigators :After HC orders: ACB pulls out contractual IOs from anti-graft probe
“Won’t be engaged for independent investigation or enquiry, perform advisory role only, work as consultants/advisor to assist SPs, ” - ACB order
The Haryana anti-corruption bureau (ACB) has withdrawn investigation of graft cases from retired Central Bureau of Investigation (CBI) officials engaged on contract basis, following a November 7 Punjab and Haryana high court (HC) directive.
The agency, however, in a December 12 affidavit to the HC said the Supreme Court has held that there is no prohibition in service rules for re-employment of a person who was once in civil service of central or state government.
The HC had on November 7 ordered the ACB to pull out officials engaged on contract from investigation, putting a stay on the chargesheet filed by such individuals. The HC said that vital questions - whether investigating officers (IOs) could be appointed to SP and DSP ranks by way of contract and whether they were authorised to conduct investigation and file chargesheet have arisen for its consideration.
The HC said taking into consideration the circumstances and their impact on the entire proceeding, it is deemed expedient that the investigation handed over by ACB to persons engaged on contract basis shall henceforth be withdrawn with immediate effect till further orders. “The charge-sheet filed by contractual engagee as the IOs shall not be proceeded further and proceedings therein shall remain stayed till next date of hearing,’’ the order said.
ACB cites SC order to back its decision
While the ACB has cited a 2019 apex court order (Telangana matter) to justify re-employment of retired officials, its latest affidavit does not talk about HCs observations that “Under what substantive provision of law could the police officers be engaged on contract basis to conduct investigation of the cases and to exercise the powers of gazetted officers and also file the final reports.” The HC November 7 order had observed there was no reference made in this regard in the state’s reply.
Quoting apex court orders, the ACB in its affidavit said “the re-employment of a retired personnel who was a member of the Indian Police Service (IPS) falls within the executive power of the state.”
IRS officer challenged probe by retired officers
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 Prevention of Corruption Act and Indian Penal Code on the grounds that the investigating officer Ramaswamy Parthasarathy (designated as DSP, ACB), a retired CBI officer engaged by the ACB was not legally authorised, competent or empowered to perform the official duties of the investigating officer.
The HC 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 HC said.
It also said the CrPC conferred 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 defined 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 HC said.
The ACBs December 12 reply said the law regarding validity of actions taken by public servants, irrespective of any illegality or defect in their appointment, is well settled by SC and reiterated in Telangana matter. “This case was also related to a retired cop employed in Telangana ACB and the action under challenge was passed by him under section 17 of the PC Act (which is required to be passed by an officer not below the rank of SP). The said order was upheld by SC,’’ the ACB affidavit reads. Hence, the actions taken by officers in investigation of FIR number 408 of September 29, 2022 ( Dheeraj Garg case) at Faridabad are perfectly legal and valid in every aspect, respective of any defect in their appointment whatsoever, the ACB has said.
