H M CAIRE Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner seeks the intervention of this Court in the exercise of its writ jurisdiction in the probe launched by the Central Bureau of Investigation (hereinafter for short as the 'cbi') and the clearance therefor, granted by the Ministry of Human Resources Development, Govt. of India. He contends that the process lacks the approval of the Central Government within the meaning of Section 6a of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the 'act' ). By order dated 04. 08. 2005 passed in the interim, the investigation undertaken by the CBI has been kept in abeyance.

(2.) I have heard Mr. G. K. Bhattacharjee, Senior Advocate assisted by Ms. P. Barman, Advocate for the petitioner, Mr. Hasibur Rahman, learned Assistant Solicitor General, Government of India for respondents No. 1 to 4 and Mr. D. K. Das, learned Standing counsel, CBI for respondent No. 5.

(3.) A summary of the pleaded facts is essential to appreciate the rival submissions. The petitioner, who belongs to the Indian Administrative Service of 1978 batch and allotted to the Assam Cadre, is presently holding the post of Principal Secretary to the Government of India, Department of Public Enterprise. From 1998 to 2004, he was posted as the Commissioner, Kendriya Vidyalaya Sangathan, New Delhi. According to him, the Sangathan is an organization set up by the Ministry of Education, Union of India and is registered as a Society under the Societies Registration Act, 1860, but is basically a wing of the Ministry of Human Resources Development (hereinafter for short also referred to as the 'hrd' ). He has pleaded that while he was under training at the Indian Institute of Public Administration, New Delhi, in the month of January 2005, he came across an article in the issue dated 16. 01. 2005 of the Magazine India Today under the caption "schools of Scandal", disclosing that following an internal audit in the affairs of the Kendriya Vidyalaya Sangathan by the HRD, large scale financial irregularities having been detected an enquiry into the same was to be conducted; by the CBI. He, therefore, addressed a letter dated 10. 05. 2005 to the Ministry of HRD, offering his comments on the alleged irregularities as detailed in the said article. In the meantime, he had received a letter on 09. 05. 2005 from the Joint Secretary, HRD on the same subject inter alia, to the effect that no reply had been received from him to the memorandum dated 07. 02. 2005, recording the alleged irregularities, which had been earlier forwarded to him. Thereby, he was asked to submit his reply by 20. 05. 2005. In response thereto, the petitioner on 18. 05. 2005 addressed a letter to the Joint Secretary, Government of India, HRD, intimating the latter that the memorandum dated 07. 02. 2005, had not been received by him. He requested that a copy thereof, be forwarded to him and also prayed for extension of time for submission of his comments. A copy of the said office memorandum was forwarded to the petitioner on 19. 05. 2005, to which he submitted his reply on 27. 05. 2005 to the Secretary, Govt. of India, Education Department. He came to learn thereafter that before seeking the above explanation, the Secretary, Ministry of HRD, had in the meantime, referred the matter to the CBI for investigation in the first week of April, 2005. Having come to learn further that the approval for such investigation had been granted by the Secretary, HRD on 15. 05. 2005 under Section 6a of the Act, he endeavoured to collect a copy thereof, but could not do so. The petitioner has contended that the post of Commissioner Kendriya Vidyalaya Sangathan, is equivalent to that of a Joint Secretary, Govt. of India and that his cadre controlling authority is the Ministry of Personal, Public Grievances and Pensions (Department of Personal and Training) (hereinafter referred to as the 'ministry of Personal etc. DOPT') and that he had been placed under the administrative control of the HRD during his stint under the Sangathan. He, therefore, maintained that the approval under Section 6a of the Act, was required to be accorded by the Ministry of Personal etc. and not by the Ministry of HRD. Having been appointed by the President of India to the Indian Administrative Service, according to the petitioner, Central Government within the meaning of Section 6a of the Act, connots (cannot) be the President of India through the Ministry of Personnel etc. The purported approval has been assailed to be without any legal authority besides being prompted by extraneous considerations frustrating the underlying purpose of protecting officers against arbitrary and vindictive action by the Government, as ingrained in the above provision of the Act. It has been further contended that the imputations contend in the memorandum dated 07. 02. 2005, even if, accepted in their entirety, do not disclose any offence under the Prevention of Corruption Act, 1998 or the Indian Penal Code. Further, the grant of such approval before the expiry of the time granted to him for submission of his replies to the accusations smacks of mala fide besides being violative of the principles of natural justice and fairness in action.