Ms. Nirmala Devi case: An open letter to Mr. R.Santhanam, Investigating Officer!
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Dear Mr. Santhanam,
I understand your happiness on being given some assignment after your retirement. But, that assignment is an unlawful one. And the way you go about it is even more unlawful. First of all, “multiple civil regulatory and criminal law enforcement authorities cannot, simultaneously, initiate proceedings that relate to the same facts or overlapping targets”. But, in this case the Governor of Tamilnadu has ventured in such misadventure.
2. Well, we understand that you had been chosen by the Governor for the reasons known to him, in a swift move, to be appointed as an investigating officer. It is not known how many other persons were considered but rejected (We will be collecting it through the RTI Act which might take some time).
3. As an IAS officer, you must, necessarily, have been aware that if any Head of the Department wants to investigate into some issues in the organisation under his jurisdiction, he would nominate one of the serving senior officers only for that purpose. It is not necessary for him to select an outsider for that purpose. But, the Chancellor of the university, Mr. Panwarilal thought otherwise. He appointed you and that too in such a hurry. Your appointment as an investigator to investigate into this scandal, shakes the conscience of the common man but you seem to be revelling. Choosing a retired officer to be appointed as the investigator into this issue, gives the unmistakable impression that the serving officers in the Raj Bhavan were found by the Governor to be totally incapable and incompetent to do this wonderful work.
Parallel investigations not permissible
4. It is not clear whether the officials of the Raj Bhavan had taken to the knowledge of the Governor, the contents of Para 4.1.1 (ii) & (iii) of the Central Vigilance Manual Vol. I – Chapter IV – Page 33), which bars parallel investigations. In this case, your appointment as the investigating officer has resulted in a more serious and piquant situation, in which we find parallel investigation being done in a matter that requires the investigating officer to examine not only the employees of the department but also non-officials, the outsiders.
5. Let me reproduce the relevant portion for your ready reference, which will tell you that your appointment by the Governor as investigating officer is patently in violation of the procedure codified in the Central Vigilance Manual.
6. The Manual says,
“4.1.1. As soon as a decision has been taken to investigate the allegations contained in a complaint, it will be necessary to decide whether the allegations should be inquired into departmentally or whether a police investigation is necessary. …
(ii) Cases in which the allegations are such that their truth cannot be ascertained without making inquiries from non-official persons; or those involving examination of non-Government records, books of accounts etc.; and
(iii) Other cases of a complicated nature requiring expert police investigation.”
This para itself would testify to the fact that the Governor had abused his position, exceeded his limits and ignored the law on the subject.
7. Dear Mr. Santhanam, I hope you would agree that the Governor does not have and cannot exercise sky-high powers, by ignoring and transgressing the procedure laid down the Central Vigilance Manual and the court-made laws. They bind him. But, the Governor had, for the reasons known only to him, done exactly what he should not do. He ignored the established procedure on the subject and appointed you to investigate into the issue, even when he was aware of the fact that the police authorities had already plunged into action.
8. I also hope that you might, during the period of your long service as IAS officer, had had occasion to read the Central Vigilance Manual (Vol. I – Page 33 - 35).
a. Para 4.3. of the Central Vigilance Manual says, “Once a case has been referred to and taken up by the CBI for investigation, further investigation should be left to them and a parallel investigation by the departmental agencies should be avoided”.
b. Hon’ble High Court of Delhi has in Union of India Vs. Lalit Kumar, observed on 09.01.2007, “Parallel investigation of any kind should be avoided. Further action by the administrative authority should be taken on the completion of the investigation by the CBI on the basis of their report”.
The reference to CBI in the context applies to all kinds of police investigation. Hope you would not try to argue that these observations are only when CBI comes into picture and that you are free to interfere in any manner and work for cross purposes when other police agencies do their work.
No power to examine Non-Officials
9. The Times of India 18.04.2018 says that the governor said. “I assure you that strict action will be taken against those mentioned in the report. The former IAS officer has all powers to question any person, including the woman, even if she is in judicial custody. After the report is submitted, if required, we will even ask for a CBI probe,” said the governor.”
10. Strange! You have been vested by the Governor to summon and question a person who is in judicial custody. What a great Governor! Where does he draw such a rule-making power from? Where are such powers enumerated and vested in the investigating officer as per the Madurai Kamaraj University Act, which the Governor had cited to justify his action in having appointed the investigating officer?
11. It is very clear that the statement of the Governor is in total contradiction to what has been said in the Central Vigilance Manual, in Para 4.1.1. supra. He cannot vest powers in an investigating officer on his own, in violation of and by going beyond the provisions contained in the Central Vigilance Manual or in the corresponding provisions of the Manuals of the State Government of Tamilnadu. Please do not, therefore, desist from carrying forward with your so-called investigation.
Cannot examine Ms. Nirmala Devi at the early stage
12. We, the common people of Tamilnadu could understand why the desperate Governor, the scandal-suspect, violated the rules. But what is the need for you to violate? Why are you demonstrating your over-enthusiasm to the nation by deliberately violating the codified investigation process in a calculated manner?
13. Have you ever undergone any training in the Institute of Secretariat Training and Management of the Department of Personnel & Training, on the methods of investigation? Are you not aware that in the investigation process, you should not put the cart before the horse?
14. As per procedure, inquiring the prime accused is optional for an investigating officer and, even if he decides to exercise that option, he should do it only at the last stage of the investigation, after investigating all other people. That was just in order to afford an opportunity to him to explain his stand about the evidence that surfaced during the course of investigation. That is the only purpose of confronting the suspect at the last stage of hearing. It is not obligatory for the investigating officer to afford that opportunity at that stage at his level. It is just optional. Please visit Para 4.4.(g) of the Central Vigilance Manual Vol I – Page 35 at least now.
15. Please stand informed that you cannot examine Ms. Nirmala Devi, the prime accused, at this early stage of your so-called investigation. Yet, you are showing extraordinary speed to meet the prime accused Mrs. Nirmala Devi on Saturday itself. That cannot be the starting point of your investigation; it cannot come at such an early stage. While your appointment as investigating officer itself is basically unlawful and has been made under questionable circumstances, by a person who is a suspect himself, your action and the priority given by you in your process of investigation to meet Mrs. Nirmala Devi on Saturday (21.04.2018) itself shows that you are either totally ignorant of the law and procedure on the subject or a willing participant acting with mala fide intention to help the cover up of the crime committed against Tamil children.
i. you cannot, even if you were a serving officer in the Raj Bhavan, compel the students or their parents to come to you for deposition.
ii. You cannot collect the data of telephone conversation from any authority.
iii. You cannot summon the parents or those in the know of things to appear before you.
Fortunately, this is the position of law, which helps the truth come up without being buried under the Raj Bhavan carpet.
17. Dear Mr. Santhanam,
1. Your appointment as the investigating officer is unlawful, because it runs parallel to the investigation done through police who alone are competent to investigate in this case.
2. Your understanding of your powers is wrong and zero, as you cannot inquire outsider non-officials, and the prime accused who is in police custody,.
3. Your activities, so far, as the investigating officer shows that you do not also have the required expertise and experience in this field of investigation.
I, therefore, request you to kindly adhere to the law of the land and not the law of the scandal-suspect.
a. Please, therefore, read Pages 33, 34, 35, the Central Vigilance Manual Vol I, at least, now.
b. Please desist from committing further unlawful acts by meeting Ms. Nirmala Devi who is in custody now.
c. Please do not continue with your misadventure as an unlawfully appointed investigating officer.
18. This is an issue pertaining the abuse of honour of our Tamil girls and we brook no non-sense.
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