Suneet Kumar,J.

1. Heard learned counsel for the petitioner and learned A.G.A. for the State respondents.

2. This writ petition has been filed with the prayer to quash the First Information Report dated 25.05.2002, registered as Case Crime No. 0122 of 2022 under sections 120-B, 419, 420, 467, 468, 471, 474, 465, 477-A, 409 I.P.C. and Section 7 & 13 of Prevention of Corruption Act, 1988, at Police Station Sahjanwa, District Gorakhpur. Further prayer has been made not to arrest the petitioner in the aforesaid case.

3. The Writ Petition is being decided finally on the consent of the parties without calling for counter affidavit.

4. It is submitted that pursuant to an advertisement issued in August 2021, by the Block Development Officer, Sahjanwa, District Gorakhpur, inviting tender for construction and maintenance of road including installation of street lights, mast light and installation of R.O. plant etc. The work came to be allotted to a firm and upon completion of the work order, petitioner, a Junior Engineer, measured the construction work of the road and installation of street light, mast light and installation of R.O. plant. Petitioner submitted the measurement report and certified the quality of work by making entry in the measurement book. Consequently, the Accounts Officer acted upon the report and after approval of the Block Development Officer, payment was released to the firm.

5. It appears, thereafter, a complaint came to be filed by the members of Kshetra Panchayat with regard to the quality and irregularity committed in the construction work and installation of street light etc. The District Magistrate, Gorakhpur, constituted an Enquiry Committee on 12.04.2022, consisting of District Social Welfare Officer, Gorakhpur, and Assistant Engineer, District Rural Development Agency, Gorakhpur. The Enquiry Committee after inspection and verification of the work submitted an inquiry report dated 13.05.2022, wherein, complicity of the petitioner, as well as, other officers was found with regard to the poor quality of construction of road etc. On the report, the impugned F.I.R. came to be lodged by the Assistant Development Officer (Panchayat), Block Sahjanwa, District Gorakhpur.

6. In the aforenoted factual background, learned counsel for the petitioner submits that the petitioner was not given an opportunity of hearing by the Committee i.e. version of the petitioner was not sought by the Committee. Reliance has been placed on an interim order dated 08.06.2022 passed in Writ-A No. 8868 of 2022 (Ajai Kumar v. State of U.P. and 4 others). It is further submitted that disciplinary inquiry should have been initiated at the first instance against the petitioner and at the most the loss caused to the State could have been recovered from the salary of the petitioner. It is finally urged that the complaint on face value is of civil nature, lodging F.I.R. was not called for as the matter was within the domain of employer-employee relation.

7. In rebuttal, learned A.G.A. submits that the Government Orders, issued from time to time, pertaining to disposal of complaint of corruption, received against the government servant was duly complied. Departmental Enquiry was instituted on the complaint and on the findings returned by the Enquiry Committee, complicity of the petitioner and other officials was found indulging in corrupt practices. Consequently, F.I.R. was lodged after approval of the Competent Authority, therefore, petition is liable to be dismissed.

8. Rival submissions fall for consideration.

9. The facts inter-se parties is not in dispute.

10. The sole question for consideration is as to whether a government servant is required to be given an opportunity of hearing by the Departmental Enquiry Committee before directing lodging of F.I.R. for corrupt practise, or in the alternative as to whether mandate of Government Orders pertaining to enquiry against government servant has been flouted.

11. 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 the consequent prosecution is bad, not being in conformity with the mandate of the Government Orders. Reliance has been placed on an interim order1 dated 08.06.2022, to urge that opportunity of hearing was not given to the petitioner, therefore, the order directing lodging the impugned F.I.R. is having civil consequence.

12. This Court in Zubair Bin Sagir v. State of U.P & 3 others2 , had an opportunity to the examine the Government Orders pertaining to complaint filed against a government officer. It would be apposite to refer the Government Orders noted in Zubair Bin Sagir (supra).

(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 Class-I 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.

13. 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 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. 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 or no opportunity of hearing was given to the petitioner.

14. 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.

15. 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.

16. In Chandrika Prasad Yadav v State of Bihar (2004 6 SCC 331) [LQ/SC/2004/475] , 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.

17. 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.

18. Further, the Government Order dated 19 July 2005, reiterated by 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 was constituted by the District Magistrate returning a prima facie finding with regard to the involvement and culpability of petitioner and other officers noted in the enquiry report. 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. The Government Order dated 14 April 1981, specifically prohibits opportunity of hearing to the government servant at the fact finding stage.

19. In Union of India v. Prakash P. Hinduja (2003) 6 SCC 195) [LQ/SC/2003/631] , though the facts therein are not similar but an analogy can be drawn. Supreme Court rejected the argument that since the directions issued by the Court in Vineet Narain and others v. Union of India (1998 (1) SCC) , 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.

20. 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.

21. In H.N. Rishbud v. State of Delhi (1955 SCR 1150) , the Supreme 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."

22. Supreme Court referring Prabhu v. Emperor(AIR 1944 SC 73) and Lumbhardar Zutshi v. The King (AIR 1950 PC 26) , 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 competence and the jurisdiction of the Court for trial.

23. 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;"

24. Insofar, interim order dated 08.06.2022 (Writ-A No. 8868 of 2022) directing lodging of the first information report was stayed by this Court on the gorund of having drastic civil consequence and the order being passed without opportunity of hearing being given to the petitioner. The interim order does not bind this Court, as the same appears to have been passed, in the given facts. It appears that the learned counsel for the petitioner had not brought to the notice of the learned Single Judge of the Government Orders, wherein, it has been categorically provided that at the stage of fact finding enquiry neither the identity of the complainant would be disclosed to the government servant against whom the discreet inquiry is directed, nor, the delinquent government servant would be informed or given an opportunity in an enquiry that is being conducted against him on the allegations of the complaint. Status of the inquiry on the complaint received against the government servant for corrupt practices is merely a fact finding inquiry so as to ascertain the veracity and prima facie truthfulness of the allegations made in the complaint. Therefore, submission of the learned counsel for the petitioner that petitioner should have been given an opportunity of hearing is unfounded. Further, petitioner does not dispute the fact that he was a Junior Engineer and had undertaken the measurement of the works which was found by the Departmental Enquiry Committee of being substandard, therefore, prima facie causing loss to the State Ex-chequer. In view of the Government Orders referred earlier, the authorities were justified in lodging the F.I.R. against the delinquent government officials for indulging in acts and omission of corruption. An order of the authority direction lodging of first information report based on prima facie finding returned by a Departmental Enquiry cannot be said to prejudice the government servant. The FIR merely sets in motion the criminal process which is as per law.

25. Having regard to the facts and circumstances, learned counsel failed to make out a case for quashing of the impugned F.I.R.

26. The writ petition is, accordingly, dismissed.