157. Moreover reference in this regard can even be made to Section 114 Indian Evidence Act, 1872. The said provision provides for presumption of existence of certain facts. It provides that the Court may presume the existence of any fact which it thinks likely to have CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 150 of 467 happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (f) to the section read as under:
"(f) That the common course of business has been followed in particular cases;"
158. It is however further mentioned in the illustration that the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it: [As regard illustration (f) reproduced above it is mentioned as under] "As to illustration (f) - The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances."
159. Thus though the presumption of delivery of a letter by registered post is rebutable but to rebut the same is the duty of accused. Though the accused may not be required to rebut the said presumption beyond reasonable doubts and it will be sufficient if even by preponderance of probabilities he is able to demonstrate that no such letter was received by him. Unfortunately in the present case except for making a bald statement that no such letter was delivered at the registered office of the company M/s VMPL no attempt worth the name has been made to show as to in what circumstances no such letter could have been delivered at the said given address of the company. Though it was submitted that the registered office of the company was under renovation and thus no document could have CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 151 of 467 been delivered over there as the company was not operating from the said address at the given point of time but I may once again state that nothing has been brought on record which could substantiate the aforesaid claim even for the sake of preponderance of probabilities.
160. In this regard it would be also worthwhile to refer to an application of A-1 M/s VMPL as was initially submitted to BIADA for seeking allotment of 200 acres of land. The said application dated 24.09.2006 is available from page 213-216 in file Ex. P-3 (Colly) (D-4) and was submitted under the signatures of A-2 Vikash Patni. In the said application the address of correspondence i.e. "Dak Pata" is mentioned as "VIKAS METAL & POWER LTD. 35, CHITTRANJAN AVENUE, 6TH FLOOR KOLKATA-700012". Again in the personal biodata of Vikash Patni as was enclosed with the application the address of correspondence i.e. "Patrachaar Ka Pata" is mentioned as "Vikas Patni, 35, Chittranjan Avenue, 6th Floor KOLKATA, West Bengal- 700012". Moreover it is not the case of accused persons that subsequent to submission of aforesaid application for seeking allotment of land any other correspondence was made to BIADA by them intimating about the change of the said correspondence address. Even in correspondence made by company M/s VMPL with BIADA and as have been referred to in detail in the earlier part of the judgment the address mentioned on the letter heads of the company is the same address as is referred to above. Similarly various correspondence which were also sent to company M/s VMPL by BIADA were sent at the same address (Earlier referred to in detail).
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 152 of 467 All the said correspondence were also duly responded to on behalf of A-1 M/s VMPL.
161. At this stage it would be also appropriate to have a brief glance over Section 27 of General Clauses Act. The same read as under:
"27. Meaning of service by post -- Where any 2[Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
162. In these circumstances it thus can not be even presumed for the sake of arguments that order of cancellation of allotment of land dated 21.09.2007 sent at the same address to M/s VMPL was not delivered or was not received by the accused persons.
163. Reference in this regard can also be made to the case(s) C.C. Alavi Haji Vs. Palapetty Muhammad and Anr. (2007) 6 SCC 555 and M/s Madan & Co. Vs. Wazir Jaivir Chand (1989) 1 SCC
264.
164. Thus in view of my aforesaid discussion, this Court is well justified in concluding that order dated 21.09.2007 whereby allotment of 300 acres of land in favour of M/s VMPL was cancelled by BIADA was duly delivered to the company. Thus keeping in view the overall CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 153 of 467 facts amd circumstances as already discussed, it is clear that the company and its officers and directors i.e. A-2 Vikash Patni who was the Managing Director and A-3 Anand Mallick, who was the Business Development Manager of the company were well aware of the factum of cancellation of allotment of 300 acres of land by BIADA upon receipt of cancellation order dated 21.09.2007 before they came to make presentation before the Screening Committee on 07.02.2008.
165. The claim of A-2 Vikash Patni and A-3 Anand Mallick that copy of cancellation order dated 27.09.2007 was recovered from their house search by CBI during the course of investigation only because they had collected it from BIADA during the course of preliminary enquiry only, does not inspire confidence even for the sake of preponderance of probabilities.
F (v) Whether Ministry of Steel relied upon the aforesaid highly inflated claims about the financial strength and capacity of the end use project made by the company M/s VMPL in its application.
166. The next question which is required to be considered is whether the claims made by company M/s VMPL as regard its financial strength i.e. turnover, profit and net-worth or the claim made qua its existing and proposed capacity were considered by Ministry of Steel in submitting its recommendation/comments/views to MOC.
167. Ministry of steel had admittedly placed various applicant companies under different categories on the basis of its own internal guidelines. In order to appreciate the issue as to whether Ministry of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 154 of 467 steel considered the figures of financial strength or the claims regarding existing and proposed production capacity of the end use project as were made by the applicant companies in their applications, it will be worthwhile to first have a glance over the guidelines, Ex. PW 12/A (colly) [available at page 289-290 in file Ex. P-6 (Colly) (D-10)] so framed by Ministry of Steel.
"Guidelines to be followed for the consideration of allotment of Coal Block 0.3mT (million metric Ton) or more capacity of production of sponge iron either existing or proposed up to December, 2010.
0.5mT (million metric Ton) or more capacity of production of pig iron either existing or proposed up to December, 2010. Background of the company-whether associated with steel, sponge, iron, pig iron or mining activity. Financial status of the company and the extent of financial tie up.
Coal washery should be envisaged in the project. Capacity of the company to quickly undertake development of coal mines based on experiance or any credible effective steps.
2. While the above criteria will determine eligibility, following priorities may be considered for allocation of coal blocks up to 50% satisfaction level which are mentioned below:-
Category I: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a)No coal linkage, no captive coal block.
(b)Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block. Category II: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
(a)No coal linkage, no captive coal block.
(b)Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 155 of 467 Category III: Any group of companies or consortium whose individual existing capacities are ineligible, make a viable joint venture and which joint venture enables it to have eligible capacity and the application is submitted in the name of joint venture.
(a)No coal linkage, no captive coal block.
(b)Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category IV: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a)No coal linkage, captive coal block with less than 50% satisfaction level.
(b)Partial coal linkage, captive coal block with less than 50% satisfaction level.
Category V: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
(a)No coal linkage, captive coal block with less than 50% satisfaction level.
(b)Partial coal linkage, captive coal block with less than 50% satisfaction level.
Category VI: Companies having no existing capacity, but proposes eligible capacity to be commissioned by December, 2010.
Category VII: Any group of companies or consortium which forms a Joint Venture and such Joint Venture has Ineligible existing capacity but proposed expansion capacity of the Joint Venture enables it to have eligible capacity and the application is submitted in the name of Joint Venture."
(Emphasis supplied by me)
168. Thus from a bare perusal of the aforesaid guidelines it is clear that the eligibility criteria so devised by Ministry of Steel clearly stated that financial status of the company and the extent of financial tie-up beside a minimum of production capacity to be achieved by December 2010 shall be the relevant criteria of eligibility of applicant companies before they are put under one or the other categories so CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 156 of 467 devised by Ministry of Steel. The existing and proposed production capacity of the end use plant was thus also an important criteria adopted by Ministry of Steel in carving out various categories in which the applicant companies were categorised.
169. PW-12 N.R. Dash, Director, Ministry of Steel was the Incharge ID-Wing where the applications received in Ministry of Steel from MOC were examined. In his deposition he stated that while placing the companies under one or the other categories the information about the existing or proposed capacity of the companies was considered as per the details mentioned in their applications. In fact on the top of office memorandum dated 06.12.2005 Ex. PW 1/H- 5 (Colly) (D-13) vide which recommendations of Ministry of Steel were sent to MOC, the following words were mentioned:
"APPLICANTS FOR CAPTIVE COAL BLOCKS (As per information provided in application form)"
170. In his cross examination as was conducted by Ld. Counsel for A-5 K.S. Kropha he admitted it to be correct that in the guidelines framed by Ministry of Steel for its internal use the financial status of the company was a relevant factor. He also stated that capacity of production of the end use project of the company was also a relevant criteria as was followed by Ministry of Steel.
171. In fact in the office memorandum dated 06.12.07, EX. PW- 1/H-5 (colly) in file Ex. P-9 (Colly) (D-13) vide which the status of various applicant companies qua different categories as were devised CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 157 of 467 by Ministry of Steel was communicated to MOC it was specifically stated in para 6 as under:
"6.0 The Screening Committee may like to discuss and consider on the following parameters:-
(i) Progress made in respect of the steel capacity projects for which the application for coal block has been submitted.
(ii) Potential and credibility of the applicants in setting up capacity addition in steel sector.
(iii)Efforts made towards development of natural resources allocated earlier."
172. Thus from the aforesaid observations made by Ministry of Steel also it is clear that it was very much concerned with the potential and credibility of the applicants in setting up capacity addition in steel sector. The progress made qua the end use project or efforts made towards development of natural resources earlier allocated were also stated to be relevant factors which the screening committee may like to consider so as to facilitate the projected growth of domestic steel capacity. In fact a perusal of minutes Ex. PW-1/L (colly) in file Ex. P-7 (Colly) (D-11) of 36th Screening Committee also shows that during the meeting held on 03.07.2008, Joint Secretary, Ministry of Steel stated that blocks be allocated to those companies which are genuine, technically and financially sound to take up the project and where capacity addition is expected to be accomplished by the year 2010.
173. It has been, however, submitted by Ld. Defence Counsels that PW 12 N.R. Dash in his cross-examination stated that on the basis of net worth and financial capacity Ministry of Steel did not CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 158 of 467 declare any applicant company to be not eligible for being considered under one or the other category. It was submitted that witness in fact thereafter volunteered that Ministry of Steel had not examined the net worth or financial capacity of the companies and that while putting up various applicant companies under different categories only the existing capacity or the proposed capacity of the applicant companies was considered.
174. In this regard I may state that the internal guidelines framed by Ministry of Steel for its own use for examining and assessing the claims of various applicant companies clearly talked of financial status of the companies and extent of financial tie up. It is correct that as per the said guidelines and as also stated by PW 12 N.R. Dash initially the applicant companies were to be screened qua eligibility criteria mentioned at the beginning of the said guidelines and thereafter depending upon the existing and proposed capacity of the end use plant of the applicant companies they were to be categorized under one or the other categories. Thus if the financial strength of the applicant companies was not considered by the Ministry of Steel then it can only be stated that the Ministry of Steel also ought to have laid down same eligibility criteria qua the strength of the applicant companies and by not laying down any such criteria they too violated the very spirit of the guidelines so laid down by Ministry of Steel. As shall be discussed at a subsequent stage also that even the working of Ministry of Steel with respect to coal block allocation matters was also not found to be above board. However, in this regard it would be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 159 of 467 worthwhile to mention that even in the minutes Ex. PW 1/L (Colly) (D-
11) of 36th Screening Committee meeting, it is mentioned that Joint Secretary (Steel) Sh. U.P. Singh at the initial stage of the proceedings stated that the blocks be allotted to those companies which are genuine, technically and financially sound to take up the project and where capacity addition is expected to accomplish by the year 2010.
175. Thus from the aforesaid comments made by Joint Secretary (Steel) it is clear that the financial strength of the applicant companies was indeed a relevant criteria for Ministry of Steel beside also the existing and proposed capacity of the end use project as was mentioned by the applicant companies in their applications.
176. Thus from the aforesaid circumstances it is crystal clear that both financial status of the applicant companies as well as the capacity of the end use project were relevant factors even to Ministry of Steel while making its recommendations qua various applicant companies to MOC.
F (vi) Whether the data furnished by A-1 M/s VMPL in its application and the feed-back form was considered by the Screening Committee, MOC.
177. As already mentioned the guidelines issued by MOC governing allocation of captive coal blocks clearly stated that for deciding the inter-se priority of various competing applicants for allocation of a captive coal block, the status (stage) level of progress and state of preparedness of the projects beside net-worth of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 160 of 467 applicant company and also the track record and financial strength of the company shall be relevant factors.
178. However apart from the said guidelines a perusal of the minutes of 36th Screening Committee also clearly show that the information as was submitted by the applicant companies in their application form was duly considered. Though I shall be referring to the minutes of 36th Screening Committee at length at a later stage of the judgment while discussing the role of accused MOC officers in the entire coal block allocation process but it would be worthwhile to refer to certain relevant portion of the said minutes over here. The same read as under:
"MINUTES OF THE 36TH MEETING OF THE SCREENING COMMITTEE HELD ON 7TH-8TH December, 2007, 7th-8th February, 2008 and 3rd JULY, 2008 IN NEW DELHI TO CONSIDER ALLOCATION OF 23 COAL BLOCKS EARMAKRD FOR NON-POWER SECTOR.
1.
2.
3.
4.
5.
6.
7.
8. (i) The Chairman then invited the Joint Secretary, Ministry of Steel to brief the members about the rationale followed by the Ministry of Steel for evaluating the applications relating to sponge iron, pig iron and steel project. The Joint Secretary, MOS explained that the present capacity of steel production in the country is around 60 MT and the Ministry of Steel is projecting a capacity expansion of 6% to 7% in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 161 of 467 immediate future. Therefore, the blocks be allocated to those companies which are genuine, technically and financially sound to take up the project and where capacity addition is expected to be accomplished by the year 2010. These companies need to be encouraged with assured supply of coal as raw material and those who are not expected to set up the projected capacities based on their track record etc. should be discouraged. Allocation of coal block to smaller players though desirable, but keeping in view their technical and financial constraints, it would be difficult for them to get the block developed in a time bound manner. He suggested that the requirement of small producers, which are genuine, should be met through linkages granted from CIL subsidiaries.
9 .  10 .  11 .  12 .
13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The committee also took into consideration the views/comments of the Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above. As regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows: The capacity indicated in the application form; The capacity indicated in the MOU entered into between the applicant company and the State Govt. concerned, wherever applicable;
The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/ Department concerned;
14. Based on the data furnished by the applicants, and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 162 of 467 the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end- use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc.
(Emphasis supplied by me)
179. Thus from the guidelines issued by MOC and the minutes of 36th Screening Committee meeting as have been reproduced above, it is crystal clear that the Screening Committee while making its recommendations relied heavily on the information furnished by the applicant companies in their application forms and especially the production capacity of the plant and financial capability of the applicant companies beside also considering the presentation made by the companies before the Screening Committee and other information furnished by the companies.
F (vii) Whether issuance of letter of allotment of coal block amounted to delivery of property resulting in wrongful gain to A-1 M/s VMPL.
180. Another important issue raised by Ld. Counsels for accused persons was that mere issuance of allotment letter can not amount to delivery of any property as mentioned in Section 420 IPC. In this regard, the observations of Hon'ble Supreme Court of India as were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 163 of 467 made in its orders dated 25.08.14, passed in the case Manohar Lal Sharma case (Supra) in para 61, 69, 70 and 71, will be worth referring to.
"61. There seems to be no doubt to us that allocation letter is not merely an identification exercise as is sought to be made out by the learned Attorney General. From the position explained by the concerned State Governments, it is clear that the allocation letter by the Central Government creates and confers a very valuable right upon the allottee. We are unable to accept the submission of the learned Attorney General that allocation letter is not bankable. As a matter of fact, the allocation letter by the Central Government leaves practically or apparently nothing for the State Government to decide save and except to carry out the formality of processing the application and for execution of the lease deed with the beneficiary selected by the Central Government. Though, the legal regime under the 1957 Act imposes responsibility and statutory obligation upon the State Government to recommend or not to recommend to the Central Government grant of prospecting license or mining lease for the coal mines, but once the letter allocating a coal block is issued by the Central Government, the statutory role of the State Government is reduced to completion of processual formalities only. As noticed earlier, the declaration under Section 1A of the CMN Act does not take away the power of the State under Section 10(3) of the 1957 Act. It is so because the declaration under Section 1A of the CMN Act is in addition to the declaration made under Section 2 of the 1957 Act and not in its derogation. 1957 Act continues to apply with the same rigour in the matter of grant of prospecting license or mining lease of coal mines but the eligibility of persons who can carry out coal mining operations is restricted to the persons specified in Section 3(3)(a) of the CMN Act.
. . . . . .
. . . . . .
. . . . . .
69. Assuming that the Central Government has competence to make allocation of coal blocks, the next question is, whether such allocation confers any valuable right amounting to grant CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 164 of 467 of largesse? Learned Attorney General argues that allocation of coal blocks does not amount to grant of largesse since it is only the first statutory step. According to him, the question whether the allocation amounts to grant of largesse must be appreciated not from the perspective whether allocation confers any rights upon the allocatee but whether allocation amounts to conferment of largesse upon the allocatee. An allocatee, learned Attorney General submits, does not get right to win or mine the coal on allocation and, therefore, an allocation letter does not result in windfall gain for the allocatee. He submits that diverse steps, as provided in Rules 22A, 22B, and 22(5) of the 1960 Rules and the other statutory requirements, have to be followed and ultimately the grant of prospecting license in relation to unexplored coal blocks or grant of mining lease with regard to explored blocks entitles the allocatee/licensee/lessee to win or mine the coal.
70. We are unable to accept the submission of the learned Attorney General that allocation of coal block does not amount to grant of largesse. It is true that allocation letter by itself does not authorize the allottee to win or mine the coal but nevertheless the allocation letter does confer a very important right upon the allottee to apply for grant of prospecting license or mining lease. As a matter of fact, it is admitted by the interveners that allocation letter issued by the Central Government provides rights to the allottees for obtaining the coal mines leases for their end-use plants. The banks, financial institutions, land acquisition authorities, revenue authorities and various other entities and so also the State Governments, who ultimately grant prospecting license or mining lease, as the case may be, act on the basis of the letter of allocation issued by the Central Government. As noticed earlier, the allocation of coal block by the Central Government results in the selection of beneficiary which entitles the beneficiary to get the prospecting license and/or mining lease from the State Government. Obviously, allocation of a coal block amounts to grant of largesse.
71. Learned Attorney General accepted the position that in the absence of allocation letter, even the eligible person under Section 3(3) of the CMN Act cannot apply to the State Government for grant of prospecting license or mining lease. The right to obtain prospecting license or mining lease of the coal mine admittedly is dependant upon the allocation letter. The allocation letter, therefore, confers a valuable right in favour of the allottee. Obviously, therefore, such allocation has CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 165 of 467 to meet the twin constitutional tests, one, the distribution of natural resources that vest in the State is to sub-serve the common good and, two, the allocation is not violative of Article
14."
(Emphasis supplied by me)
181. Thus in view of the aforesaid observations of Hon'ble Supreme Court, the allocation letter dated 06.10.2009 Ex. PW-1/M-9 (D-14) issued by MOC in favour of accused company M/s VMPL qua allotment of Moira-Madhujore coal block clearly amounts to delivery of property i.e. rights qua valuable nationalized natural resources of the country. It amounts to grant of largesse. The letter of allocation was thus a valuable security in itself much less a document which was capable of being converted into a valuable security.
182. It was however also argued by Ld. Counsels for A-2 Vikash Patni that as admitted by the prosecution witnesses there was a dispute over the boundaries of Moira-Madhujore coal block as the land thereof was acquired by Government of West Bengal for setting up an Aerotropolis Airport Project. The deposition of DW-3 Ms. Saswati Poddar and DW-4 Arun Kumar Dhar were also referred to in this regard beside referring to proceedings in the file of MOC where the said issue was extensively dealt with. It was also submitted by Ld. Counsel that in fact no coal was at all extracted from the said coal block and thus no wrongful loss was caused to anyone.
183. In this regard, I may state that the issue regarding overlapping of boundaries of Moira-Madhujore coal block with that of Aerotropolis Airport Project was indeed discussed in MOC but as is CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 166 of 467 evident from the files of MOC that the said issue was duly settled over there by excluding certain area of Moira-Madhujore coal block and in lieu thereof by adding some addiontal area to it. The said modifications of the boundaries of Moira-Madhujore coal block was subsequently also approved by the Prime Minister as Minister of Coal while approving the recommendations made by 36 th Screening Committee [Reference in this regard may be made to ID note dated 21.07.2008 Ex. PW 1/M-3 (D-13) of Sh. Ashish Gupta, Director PMO vide which approval of recommendations of 36 th Screening Committee by Prime Minister as Minister of Coal was conveyed to MOC.] Moreover neither DW-3 Ms. Saswati Poddar nor DW-4 Arun Kumar Dhar stated anything which could show that any land falling under Moira-Madhujore coal block was acquired by Government of West Bengal for Aerotropolis Airport Project. Apart from the aforesaid facts and circumstances it will be worthwhile to point out that the very issuance of allocation letter in favour of A-1 M/s VMPL by MOC in fact amounted to delivery of property. It is not the case of accused persons that upon finding that it was not feasible to mine the said Moira-Madhujore coal block on account of land falling under it having been acquired by Government of West Bengal for the Aerotropolis Airport Project, they surrendered the said allotment of coal block back to MOC. In this regard it would be also worthwhile to refer to certain other observations of Hon'ble Supreme Court in the case Manohar Lal Sharma case (Supra) wherein it was stated that allocation of coal blocks amounted to grant of largesse in favour of applicant companies and thus it cannot be stated that no wrongful gain was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 167 of 467 caused to the applicant companies. The right to obtain prospecting license or mining lease of the coal mine was admittedly dependent upon the issuance of allocation letter only. Thus the allocation letter conferred a valuable right in favour of the allottee i.e. A-1 M/s VMPL and was certainly a property within the meaning of the offence of cheating.
F (viii) Whether the dishonest misrepresentation continued before Prime Minister as Minister of Coal and thereby cheating MOC, Government of India.
184. In this regard it will be also worthwhile to refer to certain observations of Hon'ble Supreme Court in the case Kanumukkala Krishnamurthy @ Kaza Krishnhamurthy Vs. State of Andhara Pradesh, AIR 1965 SC 333. The issue involved in the said case and the present case in hand are almost similar.
185. In the said case accused Kanumukkala Krishnamurthy had applied for appointment of Assistant Surgeon in Madras Medical Services in pursuant to notification published by Madras Public Service Commission inviting applications. However, later on, it was found that the accused had misrepresented himself by impersonating as some other person and also misrepresented about his parentage and place of birth. It was also found that accused was not even holding minimum educational qualification i.e. degree of MBBS and thus he misled the Public Service Commission Authorities to believe the said misrepresentation to be true. Upon final conviction of the accused for the offence U/S 419 IPC i.e. cheating by impersonation CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 168 of 467 by Hon'ble High Court of Madras, the accused challenged his conviction before Hon'ble Supreme Court by way of Special Leave Petition. The issue as to whether by way of said case of misrepresentation/impersonation, the accused deceived Government of Madras or not came up for consideration. While discussing various aspects of the offence of cheating and thereby that of cheating by impersonation, the observations made by Hon'ble Supreme Court will be worth referring to:
"11. The only other question to determine now is whether the appellant deceived the Government of Madras and dishonestly induced it to deliver something in the form of salary to the appellant. It is urged that the appointment to the post lay with the Government and not with the Service Commission and that 'the Government would not have appointed him to the post in the Medical Service if it had not believed that the appellant possessed the necessary qualifications which, in his case, would be a degree of M.B., B.S., and that such a belief was entertained by the Government on account of the deception practised by the appellant in misrepresenting in his application that he held such a degree. On the other hand, it is contended for the appellant that the delivery of 'property' is to be by the person deceived, in view of the language of Section 415 I.P.C., and that the person deceived, if any, was the Service Commission and not the Government, the application containing the misrepresentation having been made to the Service Commission and not to the Government.
12. We accept the contention for the respondent. The appointments to the Medical Services are made by Government. The Service Commission simply selected the candidates and recommends their names to Government for appointment. This is clear from letter Exhibit P. 47 from the Secretary to the Service Commission to the Surgeon-General with the Government of Madras. The letter refers to the enclosing of a list containing the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the commission.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 169 of 467
13. This is also clear from the provisions of the Government of India Act, 1935. Section 241 provided that appointments in connection with the affairs of a Province will be made by the Governor of the Province. Sub-Section (1) of Section 266 makes it a duty of the Provincial Public Service Commission to conduct examinations for appointments to the Services of a Province. Clause (a) of sub-s. (3) provides that the Provincial Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts and cl.
(b) provides that it shall be consulted on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments. The Public Service Commission is constituted in pursuance of the provisions of Section 264. It is thus a statutory body and independent of the Government. This aspect of a Public Service Commission was emphasized in State of U.P. v. Manbodhan Lal Srivastava when considering the corresponding provisions of Article 320 of the Constitution. This Court said:
"Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services".
It is in view of these provisions that the Public Service Commission invites applications for appointment to the various posts under the Government and subsequently makes a selection out of the candidates for appointment to those posts. The selection may be after holding a written examination or after interviewing candidates or after doing both. Names of the candidates selected are arranged in order of merit and forwarded to the Government. The Government is expected, as a rule, to make appointments to the posts from out of the list, in the same order. It has, however, discretion not to appoint any part of the persons so selected and securing a place in the order of merit which would have ordinarily led to his appointment.
14. Any representation made in an application for appointments is really a representation made to the Government, the appointing authority, and not only to the Public Service Commission to which the application is presented and which has CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 170 of 467 to deal with that application in the first instance. up to the stage ,of selection. The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the interview. The deception was practised for that purpose and therefore there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.,B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The consequence of that is that the Government were led to believe that fact, which thus became a false representation.
We are therefore of opinion that the appellant's mis- representation to the Service Commission continued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission."
(Emphasis supplied by me)
186. Thus on similar lines in the present case also, it is clear that the dishonest misrepresentation as were made by the accused persons before the Screening Committee continued even before Prime Minister as Minister of Coal also when he approved the recommendation of Screening Committee. The Screening Committee was admittedly constituted to deal with all applications received for allotment of various coal blocks and to make its recommendation thereafter. The Prime Minister as Minister of Coal was thus to act CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 171 of 467 upon the said recommendation only. Accordingly the dishonest misrepresentation made before the Screening Committee continued even before the Prime Minister as Minister of Coal when he approved the recommendations of the Screening Committee. (However whether the accused MOC officers were acting in pursuance of any conspiracy with the private parties involved and thereby facilitated them in continuing with their misrepresentations even before Minister of Coal or not shall be discussed by me at a later stage of the present judgment.)
187. At this stage before proceeding further it will be now worthwhile to discuss the role played by the three accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick.
I shall be however first discussing the role played by A-3 Anand Mallick.
F (ix) Role of A-3 Anand Mallick.
188. It has been the consistent stand of accused Anand Mallick that he merely acted as an Authorized Representative of company M/s VMPL on account of the fact that he was a resident of Delhi NCR area and as the company M/s VMPL was based in Kolkata so it could not have deputed an employee from Kolkata to interact with MOC on every ocassion whenever need arose. It was also submitted that the application forms or the feed back form submitted by accused Anand Mallick with MOC were already filled up in Kolkata before he received them in Delhi. As regard his presence before the Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 172 of 467 Committee at the time of presentation on 07.02.08, it was submitted that he accompanied co-accused Vikash Patni and PW-15 Ranjan Barma only because he was the authorised representative of the company M/s VMPL and his presence was required as per the guidelines issued by MOC governing allocation of captive coal blocks.
189. It has also been argued that no other evidence has been brought on record by the prosecution which could show that accused Anand Mallick in any manner ever conspired with other accused persons so as to procure allocation of a captive coal block in favour of company M/s VMPL from MOC or that accused Anand Mallick was aware of any mis-representation made in the application form on behalf of M/s VMPL or even in the feed-back form or in the presentation made before the Screening Committee. It has also been submitted that accused Anand Mallick had no knowledge of the fact that allotment of 300 acres of land in favour of M/s VMPL has since been canceled by BIADA. As regard recovery of copy of cancellation letter qua allotment of land from his possession during the course of search operation carried out by CBI, it has been submitted that when during the course of preliminary enquiry registered by CBI this fact came to the knowledge of accused Anand Mallick then he himself had obtained the copy of the said cancellation order from the office of BIADA and provided it to IO and in this process only the copy of the said order was available with him which was subsequently recovered by CBI during the course of search operation. It has thus been submitted that as prosecution has clearly failed in proving that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 173 of 467 accused Anand Mallick had any malafide intention in merely signing the application form or feed-back form so the charge of cheating or that of criminal conspiracy cannot hold ground against him.
My Discussion
190. At the outset, I may state that none of the aforesaid contentions of accused Anand Mallick hold ground at all. As has been discussed and demonstrated above all the correspondence on behalf of company M/s VMPL with different departments of Government of Bihar including BIADA was primarily undertaken by accused Anand Mallick under his own signatures only. In these circumstances the averment that accused Anand Mallick was appointed as an Authorized Representative by company M/s VMPL only because he was available in Delhi and the company was based in Kolkata, does not hold ground at all. A-3 Anand Mallick clearly had played an active role as Business Development Manager of the company M/s VMPL, not only in the allotment of land to M/s VMPL by BIADA but subsequently also when BIADA initiated the proceedings to cancel the said allotment of land. Thus the active role played by accused Anand Mallick in the affairs of M/s VMPL relating to various aspects towards establishing its end use plant and also in the process of procuring allocation of a captive coal block from MOC in favour of A-1 M/s VMPL stands well proved on record.
191. Moreover, accused Anand Mallick admittedly also appeared before the Screening Committee at the time of presentation and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 174 of 467 submitted the feed-back form on behalf of the company. As earlier also discussed accused Anand Mallick was in fact the signatory of various communications vide which BIADA was informed that the company M/s VMPL no longer intends to establish the proposed integrated steel plant and in its place intends to establish a 2000 MW power plant. Thus the claim of accused Anand Mallick that he was not aware that any false fact has been mentioned either in the feed-back form or in the presentation made before the Screening Committee also does not hold ground. Despite knowing fully well that the company has since dropped the idea of establishing the integrated steel plant and has rather decided to establish a 2000 MW power plant, the feed-back form was still submitted to Screening Committee by accused Anand Mallick under his own signatures stating that steps are being taken to establish the integrated steel plant. Similarly, presentation was also made in the presence of accused Anand Mallick on behalf of company M/s VMPL that it is proceeding ahead with establishing the proposed integrated steel plant even though he knew fully well that company M/s VMPL do not intend to establish any such plant.
192. Moreover, irrespective of the fact as to whether accused Anand Mallick had any knowledge or not that figures of turnover, profit and net-worth of company M/s VMPL have been wrongly mentioned in the application form, but he certainly cannot claim ignorance about the total number of annexures or the descriptions thereof filed along with the application form as was submitted under CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 175 of 467 his signatures. As already discussed and demonstrated above, no project report was filed along with the application even though on the alleged covering letter of the application, it was mentioned that project report has been filed and receipt of application was accordingly obtained on the said covering letter from the officials posted at Scope Minar, Laxmi Nagar who were receiving the applications. This act again goes to establish the very malafide intention from the beginning on the part of accused persons in misleading MOC, Government of India so as to deceive it and thereby induce it to allocate a captive coal block in favour of company M/s VMPL.
193. Moreover the claim of accused Anand Mallick that copy of cancellation order of 300 acres of land issued by BIADA was recovered from his possession during the course of search operation only because during the course of preliminary enquiry registered by CBI he himself had procured copy of the said order from BIADA and had supplied it to CBI while also retaining a copy thereof in the said process does not per se appears to be carrying any force. The reasons for the same are ample and clear.
From the various communications undertaken on behalf of company M/s VMPL with BIADA as have been reproduced above and have also been discussed in detail, it is clear that company M/s VMPL was well aware that the allotment of land in their favour is liable to be cancelled by BIADA as company has failed to comply with the twin conditions i.e. making payment for the land by 30.06.2007 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 176 of 467 and to also construct boundary wall around the land and failing which allotment of land will be canceled. Receipt of communication dated 07.05.2007 in this regard from BIADA has not been disputed by the accused persons. Subsequently, vide another communication dated 15.06.2007 whose receipt has also not been disputed on behalf of the company, it was clearly specified by BIADA that as no steps have been taken either to make the payment of the land or to construct the boundary wall and which conditions were to be fulfilled by 30.06.2007 so it appears that company was not inclined to establish the proposed project at the given land and thus the company was asked as to why the allotment of land should not be deemed to have come to an end. In fact, the company M/s VMPL had thereafter responded to BIADA vide another communication dated 28.06.2007 under the signatures of accused Anand Mallick only seeking extension of time to make payment and to construct boundary wall till 31.08.2007. However, the cancellation order issued by BIADA on 21.09.2007 further shows that even till 31.08.2007 no such steps were taken by the company i.e. either to make the payment of the land or to construct the boundary wall. Admittedly no further extension of time in this regard was even sought by the company M/s VMPL from BIADA.
194. The aforesaid circumstances thus clearly shows that matter in this regard was being regularly followed up by the company M/s VMPL with BIADA and it thus cannot be presumed even for the sake of arguments that after 28.06.2007 company M/s VMPL stopped pursuing the matter with BIADA. The issue that the letter dated CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 177 of 467 21.09.07 qua cancellation of allotment of land was sent by BIADA to the registered office of company by registered post has also been already dealt by me. It has come in the evidence of PW 4 Sh. Devanand Dutta, Official of BIADA that after the said letter was posted in the routine course of their duty, the same was not received back. Nothing has been shown by the accused persons which could even remotely suggest that the said letter was never delivered at the registered office of company M/s VMPL. More so all the communications sent by BIADA prior to order dated 21.09.07 were also at the same address and it has not been disputed at all that any such communication was not received by them. In fact all such correspondence were duly responded to by the company. Thus in these circumstances it can not be presumed even for the sake of arguments that order dated 21.09.07 was not delivered at the office address of company A-1 M/s VMPL.
195. No evidence has even been brought on record by accused Anand Mallick to show that during the course of preliminary enquiry he had gone to the office of BIADA to collect the copy of said cancellation order to be supplied to the Enquiry Officer. Moreover, even if it is presumed that such a copy of letter was supplied by accused Anand Mallick to the Enquiry Officer, who was conducting preliminary enquiry then also this fact does not show that the said letter was earlier not received by accused Anand Mallick or was not to his knowledge in the year 2007-08.
196. In view of my aforesaid discussion, I am thus of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 178 of 467 considered opinion that prosecution has been completely successful in proving various overt acts on the part of accused Anand Mallick to show that not only he was actively involved in the affairs of company M/s VMPL especially as regard the coal block allocation process but he too was having the malafide intention right from the beginning so as to mislead MOC, Government of India so as to procure allocation of a captive coal block in favour of company M/s VMPL.
F (x) Role played by A-2 Vikash Patni
197. As regard the role played by A-2 Vikash Patni, Ld. Counsel Dr. Sushil Kumar Gupta vehemently argued that in the facts and circumstances of the case, no offence whatsoever is made out against any of the accused persons much less against A-2 Vikash Patni. It was submitted that A-2 Vikash Patni had no role to play in the entire matter and keeping in view the principle of "alter ego" as was explained by Hon'ble Supreme Court in the case Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609, no liability of any nature whatsoever can be attributed upon him. It was also argued by Ld. Defence Counsel that prosecution has miserably failed to prove that application of A-1 M/s VMPL was incomplete in any manner and also that the figures of turnover, profit or net-worth mentioned in the application were wrong. It was submitted that during the course of trial, it has been established on record by the accused persons that document Ex. P-96 (Colly) (D-8) i.e. the application of M/s VMPL as has been produced and relied upon by CBI is not a complete document and thus no conclusion much less any adverse CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 179 of 467 inference can be drawn against the accused persons on the basis of such an incomplete document. It was also submitted that admittedly as per the case of prosecution itself the application in question was submitted to MOC under the signatures of A-3 Anand Mallick who was the Business Development Manager of the company. It was further stated that A-2 Vikash Patni was merely looking after the plant operation of the company at Purulia, West Bengal and thus had no role to play in the day to day working of the company. Even as regard the presentation made before the Screening Committee on 07.02.2018, it was submitted that A-2 Vikash Patni had merely accompanied PW-15 Sh. Ranjan Barma to the Screening Committee meeting who admittedly had made the presentation and at that time A-3 Anand Mallick, the authorised representative of the company was duly present. It was thus submitted by Ld. Defence Counsel that in the absence of any overt or covert act on the part of A-2 Vikash Patni, no liability of any nature whatsoever can be attributed upon him.
My Discussion
198. At the outset, I may state that the issues relating to non-filing of project report alongwith the application or the audited annual accounts/reports of Impex Group of Companies alongwith the application submitted to MOC on 12.01.2007 have already been dealt with by me in the earlier part of present judgement. It has also been concluded that not only the application of M/s VMPL as was submitted to MOC was incomplete in terms of the guidelines issued by MOC governing allocation of captive coal blocks but even the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 180 of 467 figures of turnover, profit and net-worth mentioned in the application did not tally with the balance sheets of M/s VMPL which were annexed with the application. It has also been discussed at length that in the application it was no where disclosed that applicant company M/s VMPL was either a SPV or a group company of Impex Group of Companies. It has also been discussed that in the feed- back form submitted under the signatures of A-3 Anand Mallick at the time of presentation before the Screening Committee, the factum of allocation of 300 acres of land by Government of Bihar was wrongly mentioned as by that time the said allotment of land was already cancelled by BIADA. It has also been concluded that the company had knowledge that vide order dated 21.09.07 the allotment of 300 acres of land in its favour has since been canceled by BIADA. In these circumstances, I do not intend to revisit those issues over here again and I propose to confine my discussion to the role played by A-2 Vikash Patni only.
199. As regard the concept of vicarious liability, I may state that Ld. Counsel for A-2 Vikash Patni is certainly right that the Managing Director of a Company can not be simplicitor held liable for any acts committed by the company or any of its officers unless evidence of some overt or covert act attributable to the said Managing Director comes on record. In these circumstances what is now required to be seen is as to whether prosecution has been successful in proving on record any such overt or covert act attributable to A-2 Vikash Patni which may make him liable for any of the offence committed by A-1 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 181 of 467 M/s VMPL or A-3 Anand Mallick, the Business Development Manager of the company.
200. In this regard it would be worthwhile to refer to an application dated 24.08.2006 submitted on behalf of company M/s VMPL to BIADA seeking allocation of 200 acres of land for its integrated steel plant. The said application as is available from page 213-216 in file Ex. P-3 (Colly) (D-4) was admittedly submitted under the signatures of Vikash Patni himself. It is pursuant to the said application only that 200 acres of land was initially allotted by BIADA in district Begusarai Bihar. Subsequently on another request of company M/s VMPL though submitted under the signatures of A-3 Anand Mallick another 100 acres of land was allotted to the company by BIADA. Thereafter all the subsequent correspondence which were undertaken by BIADA with the company M/s VMPL were also addressed to Vikash Patni, the Managing Director of the company. The said communications were sent at the same address which was furnished by A-2 Vikash Patni in his initial application dated 24.08.2006 and the same were duly responded to by the company. A-3 Anand Mallick had thereafter made various correspondence with BIADA on behalf of M/s VMPL under his signatures. Thus from the aforesaid circumstances, it is clear that A-2 Vikash Patni himself was actively involved in the allotment of land in favour of company M/s VMPL from BIADA. Apart from the aforesaid circumstances we have also on record the documents recovered during the course of search operation from the house of Vikash Patni. The said documents contains copies of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 182 of 467 various press clippings. All the said documents have been admitted to be genuine u/s 294 Cr.PC by A-2 Vikash Patni and certainly can be referred to by this Court. In the said documents there are some press-clipping with photographs and from a bare perusal of the same it is clear that the MOU entered into between M/s VMPL and Bihar Electricity Board (BEB) in connection with Integrated Power Plant to be set up at Begusarai, Bihar was signed on behalf of M/s VMPL by A-2 Vikash Patni only. It has been also already discussed that after initially proposing to set up an integrated steel plant, the company M/s VMPL had instead proposed to establish an integrated power plant on the same very land which was allotted to it by BIADA. It was in this regard that a MOU was entered into by M/s VMPL with Bihar Electricity Board.
This circumstance thus once again shows the active involvement of A-2 Vikash Patni in establishing the end use plant of M/s VMPL at Begusarai, Bihar.
201. I have also already discussed and demonstrated that the order dated 21.09.2007 vide which allotment of 300 acres of land in favour of M/s VMPL was cancelled by BIADA was also addressed to A-2 Vikash Patni and was posted at the same address which was mentioned as correspondence address in the application dated 24.08.2006 submitted by A-2 Vikash Patni to BIADA. I have also concluded that there is no reason to disbelieve that A-1 or its officers or directors were not having knowledge that allotment of 300 acres of land has since been cancelled by BIADA.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 183 of 467
202. Moreover from the fact that MOU with Bihar Electricity Board in connection with establishing the power project at Begusarai, Bihar on the same land which was earlier allotted to be the company M/s VMPL by BIADA for establishing the integrated steel plant was signed by A-2 Vikash Patni himself so he knew very well that the company is no longer establishing the integrated steel plant, qua which presentation was being made before the Screening Committee or whose details were being mentioned in the feed back form submitted to Screening Committee. This fact in itself establishes the existence of malafide intention on the part of A-2 Vikash Patni in deceiving MOC, Government of India so as to procure allocation of a captive coal block.
203. Thus if in these circumstances the presence of A-2 Vikash Patni at the time of presentation in the Screening Committee meeting is considered then it is found that in the feed-back form submitted to Screening Committee on 07.02.08 on behalf of A-1 M/s VMPL it was wrongly claimed that 300 acres of land stands allotted in favour of company and it was well to the knowledge of A-2 Vikash Patni that the said allotment of land has since been cancelled by BIADA. Thus the active and overt acts on behalf of A-2 Vikash Patni in the coal block allocation process on behalf of company M/s VMPL are writ large on the face of the record. The argument put-forth in this regard by Ld. Counsels for accused that the presentation was made by PW- 15 Ranjan Barman and that A-2 Vikash Patni had no role to play in the presentation or submission of feed-back form also does not hold CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 184 of 467 ground as in his deposition PW-15 Ranjan Barman clearly stated that he had gone to the Screening Committee meeting on the request of Vimal Kumar Patni, who was father of A-2 Vikash Patni and to only read the presentation in English as A-2 Vikash Patni himself was not proficient in English. Strangely enough no question or suggestion disputing the aforesaid deposition of the said witness was put to him in his cross-examination on behalf of A-2 Vikash Patni. In these circumstances there is no reason to even doubt the deposition of PW- 15 Ranjan Barman in this regard.
204. From my aforesaid discussion it is thus crystal clear that A-2 Vikash Patni is not being arrayed as accused or tried or being held liable on the basis of principle of alter ego or on the basis of vicarious liability but prosecution in my considered view has been clearly successful in proving on record cogent and convincing evidence to show that A-2 Vikash Patni was not only consistently involved in the affairs of M/s VMPL but was also actively involved in procuring allocation of a captive coal block from MOC Government of India in favour of M/s VMPL.
205. However before parting away with the present issue, I may state that during the course of investigation no efforts seems to have been made to collect other evidence of the company A-1 M/s VMPL such as the board resolution passed in the meetings of Board of Directors which would have certainly thrown light as to various other aspects and especially as regard the knowledge of all these aspects to the company and its other officers/directors.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 185 of 467 F (xi) Role played by A-1 M/s VMPL.
206. From the aforesaid extensive discussion of the prosecution case, it is crystal clear that both A-2 Vikash Patni who was the Managing Director of A-1 M/s VMPL and A-3 Anand Mallick who was the Business Development Manager of the company were clearly acting on behalf of company i.e. A-1 M/s VMPL so as to deceive MOC Government of India so as to procure allocation of a captive coal block in favour of company M/s VMPL. In other words the company M/s VMPL was acting through the said two persons in making various representations either before different authorities in state of Bihar or before MOC so as to procure allocation of a captive coal block in its favour. However Ld. Counsel Sh. Sougat Sinha submitted that as company M/s VMPL has already gone in liquidation and pursuant to filing of a winding-up petition before Hon'ble High Court of Calcutta, an Official Liquidator has been appointed. It has been thus pointed out that the official status of A-1 M/s VMPL is no longer the same status as was there at the time of submitting the application to MOC for seeking allocation of a captive coal block. It has thus been submitted that in these circumstances the company A- 1 M/s VMPL ought not to be convicted for any offence, if made out on the basis of acts of A-2 Vikash Patni and A-3 Anand Mallick committed at the time of seeking allocation of captive coal block from MOC, Government of India, in favour of the company.
My Discussion CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 186 of 467
207. In this regard, I may state that what is being looked into in the present judgment is as to what all acts were committed by the various parties involved in the present matter at the relevant time and what was the effect thereof. Thus if on account of the said acts company M/s VMPL is held guilty for any offence whatsoever then the various submissions as have been made by Ld. Counsel Sh. Sougat Sinha on behalf of Official Liquidator would be relevant and considered only at the time of hearing on the point of sentence and not at this stage i.e. when the quantum of punishment will be decided. At the cost of repetition, I may thus state that since various acts of misrepresentation were made on behalf of A-1 M/s VMPL by A-2 Vikash Patni and A-3 Anand Mallick so it can not be stated that the company M/s VMPL is in any manner sought to be burdened with any form of vicarious liability.
F (xii) Whether the ingredients of the offence of cheating stands proved.
208. Thus from the aforesaid discussion, it is clear beyond shadows of any reasonable doubts that all the three accused namely A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick dishonestly misrepresented to 36th Screening Committee about its various claims such as its intention to establish an integrated steel plant at Begusarai, Bihar beside also presenting a higher status/stage of preparation towards establishing the end use project and thereby induced it to make a recommendation in favour of A-1 M/s VMPL for allocation of Moira-Madhujore coal block. It also stands well proved CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 187 of 467 that MOC, Government of India was thereby deceived and was induced to approve allocation of Moira-Madhujore coal block i.e. a valuable security in favour of A-1 M/s VMPL for its captive use.
209. The very ingredients of the offence of cheating i.e. u/s 420 IPC thus stands proved against all the three accused i.e. A-1 M/s VMPL, A-2 M/s Vikash Patni and A-3 Anand Mallick.
F (xiii) Whether the accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni And A-3 Anand Mallick acted in pursuance to a criminal conspiracy.
210. Having come to the conclusion that all the three accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick cheated MOC, Government of India in order to procure allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL, the next issue to be considered is whether such acts of cheating were committed by all the three accused persons in pursuance to a criminal conspiracy hatched by them or not.
211. It has been vehemently argued by Ld. Counsels for the accused persons that in order to establish the charge of criminal conspiracy, the prosecution is required to prove that an agreement was entered into by the accused persons either for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. It was submitted that a few bits here and a few bits there cannot be relied upon by the prosecution in order to prove the charge of criminal conspiracy. It was submitted that even if no direct CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 188 of 467 evidence may be available and the charge of criminal conspiracy is sought to be proved by way of circumstantial evidence then also each of the circumstance leading to such a conclusion must be independently explained and proved and the said circumstances should not be explainable on any other hypothesis or in other words should not lead to any other conclusion much less consistent with the innocence of accused persons. It was thus submitted that prosecution has miserably failed in proving existence of any agreement between the three accused persons i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick much less with the other accused MOC officers.
212. In order to appreciate the aforesaid submissions of Ld. Counsels for the accused persons vis-a-vis the case of prosecution, it will be appropriate to refer to the often quoted observations of Hon'ble Supreme Court as regard the offence of criminal conspiracy as were made in the case "State through Superintendent of Police, CBI/SIT Vs. Nalini", 1999 (5) SCC 235. The said observations have been consistently followed in all the cases till date.
213. In the said case, Hon'ble Supreme Court summarized the broad principles governing the law of conspiracy as under:
"591. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.
Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 189 of 467 alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
Conspirators may, for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella- spoke enrollment, where a single person at the center doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 190 of 467 further help prosecution to prove the charge of conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders". As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 191 of 467 them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
214. Thus, undoubtedly direct evidence qua offence of criminal conspiracy is hard to come up but the same is to be ascertained from the overall facts and circumstances of a given case.
215. Coming now to the facts of the present case, it will be pertinent to mention that the factum of submission of application Ex. P-96 (Colly) (D-8) of A-1 M/s VMPL seeking allocation of Moira- Madhujore coal block under the signatures of its authorised signatory i.e. A-3 Anand Mallick stands well proved. The presence of A-2 Vikash Patni and A-3 Anand Mallick at the time of presentation before the Screening Committee on 07.02.2008 has also been cogently established. The submission of feed-back form at that time CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 192 of 467 under the signatures of A-3 Anand Mallick also stands well proved on record. It has also been clearly established in the earlier part of present judgment that the company A-1 M/s VMPL never had any intention to establish the proposed integrated steel plant and it was also to its knowledge that the allotment of 300 acres of land in favour of M/s VMPL has been cancelled by BIADA vide order dated 21.09.2007. It has been also well established and concluded that both A-2 Vikash Patni, Managing Director of A-1 M/s VMPL and A-3 Anand Mallick, Business Development Manager of the company had knowledge of both the aforesaid aspects. Thus when despite having such a knowledge the accused persons i.e. A-2 Vikash Patni and A-3 Anand Mallick continued to pursue further with their application submitted on behalf of A-1 M/s VMPL before the Screening Committee, MOC, Government of India for seeking allocation of a captive coal block, the said acts per-se shows the existence of an agreement amongst them so as to procure allocation of a captive coal block from MOC, Government of India in favour of A-1 M/s VMPL at any cost whatsoever. The object to procure the allocation of said captive coal block from MOC has also been discussed by me in as much as the company wanted to divert coal produced from the said coal block to its existing sponge iron plant at Purulia West Bengal and especially because Government of West Bengal was not in favour of allocation of any coal block situated in the State of West Bengal in favour of M/s VMPL. It is also apparent from the facts and circumstances of the case that company M/s VMPL had earlier also applied for allocation of a captive coal block before MOC and their CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 193 of 467 application was in fact also considered by 34 th and 35th Screening Committee but it remained unsuccessful. The object of mentioning all such details of the proposed end use project was to somehow meet the criteria laid down by Ministry of Steel regarding proposed sponge iron capacity to be achieved and thereby obtaining allotment of a captive coal block from MOC, Government of India.
216. The issue regarding mentioning of inflated claims qua financial strength of the company in the application has also been already discussed by me and it was well to the knowledge of accused persons that in terms of the guidelines issued by MOC governing allocation of captive coal blocks, it was not permissible to mention the figures of financial strength of any group company as the company M/s VMPL was neither a special purpose vehicle (SPV) nor a joint venture company constituted by any other company or companies. Moreover in the application it was no where mentioned that company M/s VMPL is a part of Impex Group of Companies. Thus from the aforesaid facts and circumstances, we have a case where there is no requirement of even drawing any inference about the existence of a criminal conspiracy amongst the accused persons as the said meeting of mind or existence of an agreement which is a sine-qua- non for a criminal conspiracy to exist is writ large on the face of record. The offence of criminal conspiracy i.e. u/s 120-B IPC thus clearly stands proved beyond shadows of all reasonable doubts as against A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 194 of 467 F (xiv) Conclusion
217. From the aforesaid discussion it is thus clear that prosecution has been successful in proving its case against all the three accused persons namely A-1 M/s VMPL; A-2 Vikash Patni and A-3 Anand Mallick for the offence of criminal conspiracy i.e. u/s 120-B IPC and also for the offence of cheating i.e. u/s 420 IPC beside also for the offence u/s 120-B/420 IPC and I accordingly hold them guilty of the said offences and convict them thereunder.
(G) Role of accused Ministry of Coal officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria
218. After having discussed the role played by the private parties involved i.e. A-1 M/s VMPL, A-2 Vikash Patni and A-3 Anand Mallick in the entire coal block allocation process which led to allocation of Moira-Madhujore coal block in favour of A-1 M/s VMPL, I shall be now discussing the role played by accused MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria in the said coal block allocation process. In order to appreciate the role of these officers of MOC either in their capacity respectively as Secretary Coal and Chairman Screening Committee; Joint Secretary Coal and Member Convener, Screening Committee or Director CA-I Section, MOC, it will be important to first delineate the role which was played by them in the entire coal block allocation process. Thereafter it will be seen as to whether various acts of omission or commission as have been CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 195 of 467 attributed to them by the prosecution stands proved or not and what is the cumulative effect of such proved acts of omission and commission qua each of the three accused persons.
219. Admittedly an advertisement inviting applications for allotment of captive coal blocks reserved for power sector or other end users was issued by MOC after approval in this regard was given by Secretary, Ministry of Coal i.e. A-4 H.C. Gupta. The guidelines governing allocation of all such captive coal blocks were also approved and uploaded on the website of MOC with the approval of A-4 H.C. Gupta. The period during which the applications were to be received by MOC was also decided with the approval of Secretary Coal. The guidelines under the title "Where to apply" clearly provided all the details regarding the person to whom the applications in five copies were to be addressed or the place where the applications were to be submitted. The guidelines under the title "How to apply" further provided all the details and necessary information regarding the documents which were required to be enclosed with the application. It was also provided therein that without the said enclosures the applications would be treated as incomplete and shall be rejected. Further the guidelines under the title "Guidelines for allocation of captive blocks and conditions of allotment through the screening committee" inter-alia mentioned various factors on the basis of which inter-se priority for allocation of a coal block among competing applicants for a captive block may be decided. It again provided the details of the documents which were to be annexed with CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 196 of 467 the application beside stating that an applicant may file any other document, it may choose to submit. The guidelines under the title "Processing of application" specified the manner in which the applications received in MOC were to be dealt with by it.
In fact the file on all the aforesaid occasions also passed through the desk of Joint Secretary, Coal, i.e. A-5 K.S. Kropha before A-4, H.C. Gupta as Secretary Coal accorded his approval to various matters mentioned above.
220. Though the purpose of framing all such guidelines by MOC or the effect thereof shall be discussed by me at a later stage of the present judgment but at this stage it will be worthwhile to mention the various questions which this Court needs to answer while examining the role played by accused MOC officers. The first and foremost question which needs to be answered is whether the aforesaid guidelines were binding upon both MOC and screening committee. If yes, whether the same were followed and if not then qua what aspects the same were not followed. The role and responsibility of A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria towards ensuring compliance with the said guidelines also needs to be thereafter examined. It is also required to be seen as to whose responsibility was it to comply with the said guidelines and whether any such duty was assigned to any particular officer/official or a given section in MOC. It also needs to be seen as to whether the applications were actually checked for their completeness and eligibility in MOC as was required under the guidelines and, if yes, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 197 of 467 whether the applications which were found to be incomplete in terms of the said guidelines were actually rejected or not as was required under the guidelines. In other words whether incomplete applications were also to be considered by the screening committee instead of getting them rejected at the initial stage itself in the MOC. The effect of non-compliance with the guidelines on the coal block allocation process will also be required to be seen.
221. Apart from the aforesaid questions other important issues which needs to be examined by this Court are, whether non- compliance with the guidelines to any extent by the accused MOC officers was their conscious and intentional act and also whether the same was in pursuance of any criminal conspiracy hatched by them with other co-accused persons or not. It is thereafter only can it be examined as to whether the acts of omission and commission as stands proved against the MOC officers amount to criminal misconduct under the Prevention of Corruption Act, 1988 or not.
222. In order to appreciate the aforesaid issues comprehensively, it will be appropriate to once again have a brief glance over the relevant portion of the guidelines so issued by MOC. (The entire set of guidelines have though already been reproduced in the earlier part of the present judgment).
223. The procedure to apply for allocation of a coal block was provided as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 198 of 467 "How to apply?
I. Application in the prescribed format (five copies) should be filled up. Please note that separate application is to be submitted for each block in case application is made for more than one block. Similarly, separate application is to be submitted in case application is made for more than one end use plant. The details in the format should be filled up in respect of the specific end use plant for which application is made. The details of experience in respect of other plants may be provided in separate sheets.
(i) If the applicant is an end user, the details of the company alongwith the relevant details of the end use plant (for which block is being applied) are to be filled up at relevant places.
(ii) In case the applicant is a JV Mining company (consortium of end user companies) or an Independent Mining company (with firm back-to-back tie up with permitted end users) list of promoter companies or the list of companies with whom tie up for supply of coal has been finalized, quantities to be shared/supplied, and certified copies of agreement/contract etc. are to be provided. The details in respect of finances, end use plant and previous allocation of blocks i.e. SI. No. 8 to 25 and 28, 29 of the application for are to be provided in respect of all the companies with whom the supply agreement is executed. Such details may be provided on separate sheets, in the proforma as given in Form A, with suitable explanation. (Refer Form A) II The following documents should be enclosed along with the application form:
Certificate of registration showing that the applicant is a company registered under Section-3 of the Indian Companies Act. This document should be duly signed and stamped by the Company Secretary of the Company. (1 copy) Certified copy of the Memorandum and Articles of Association of the applicant Company. (5 copies.) Audited Annual Accounts/reports of last 3 years. (5 copies) Project report in respect of the end use plant. If the project report is appraised by a lender, the appraisal report shall also be submitted. (5 copies) Detailed Schedule of implementation for the proposed end use project and the proposed coal mining development project including Exploration programme (in respect of regionally CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 199 of 467 explored blocks) in the form of Bar Charts. (5 copies) Scheme of disposal of unuseables containing carbon obtained during mining of coal or at any stage thereafter including washing. This scheme must include the disposal/use to which the middlings, tailings, rejects etc from the washery are proposed to be put. (5 copies) The above details are required to be submitted in respect of all the concerned companies in case of SPV/JV or Mining company.
Demand draft of Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi III Applications without the above accompaniments would be treated as incomplete and shall be rejected."
(Emphasis supplied by me)
224. The place where the applications were to be submitted and the person to whom the same were to be addressed was provided as under:
"Where to Apply?
The application, in five (5) copies, is to be addressed to Sh. Sanjiv Mittal, Director (CA-I) Ministry of Coal and to be submitted in:
Coal India Limited Office Scope Minar, 5th Floor, Laxmi Nagar District Centre Delhi 110092 between 10.30 AM and 4.00 PM on any working day. The application should reach the Ministry of Coal latest by 12th of January, 2007."
(Emphasis supplied by me)
225. As regard the procedure for processing of the applications, the following guidelines were also put up on the website:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 200 of 467 "PROCESSING OF APPLICATION The applications received in the Ministry of Coal in five copies, after being checked for eligibility and completeness, would be sent to the administrative Ministry/State Government concerned for their evaluation and recommendations. After receipt of recommendations of the administrative Ministry/State Government concerned, the Screening Committee would consider the applications and make its recommendations. Based on the recommendations of the Screening Committee, Ministry of Coal will determine the allotment."
(Emphasis supplied by me)
226. Further for ascertaining the interse priority of various applicants for allocation of Coal Blocks for captive use, the following guidelines were uploaded on the website:
"9. Inter-se priority for allocation of a coal block among competing applicants for a captive block may be decided as per the following guidelines:
Status (stage) level of progress and state of preparedness of the projects;
net-worth of the applicant company (or in the case of a new SP/JV, the net-worth of their principles); Production capacity as proposed in the application; Maximum recoverable reserve as proposed in the application; Date of commissioning of captive mine as proposed in the application;
Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; Technical experience (in terms of existing capacities in coal/lignite mining and specified end use); Recommendation of the Administrative Ministry concerned; Recommendation of the State Government concerned (i.e. where the captive block is located);
Track record and financial strength of the company.
Preference will be accorded to the power and the steel sectors.
Within the power sector also, priority shall be accorded to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 201 of 467 projects with more than 500MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 million tonne per annum capacity."
(Emphasis supplied by me)
227. It has been however vehemently argued by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha and A-6 K.C. Samria and by Ld. Counsel Sh. Rajat Mathur for A-4 H.C. Gupta that it was the sole responsibility of CA-1 Section, MOC to ensure compliance with the said guidelines. Reference in this regard was also made to the deposition of PW-1 V.S. Rana who stated that it was the responsibility of CA-I Section to comply with the said guidelines. It was also submitted that admittedly no written note was ever put up by CA-I Section to any of the senior officers stating that the guidelines so issued by MOC could not be complied with. It was thus submitted that as no such note was put up by CA-I Section so there was no way in which Joint Secretary Coal, K.S. Kropha or Secretary Coal, H.C. Gupta could have known that the guidelines so issued regarding processing of applications received in MOC have not been complied with. It was further submitted that though PW-13 V.S. Rana stated in his deposition in Court that he had verbally informed the senior officers of MOC that the applications have not been checked for their completeness and eligibility due to shortage of manpower and lack of expertise on the part of officials of CA-I Section but he also stated that he did not reproduce the said verbal information given by him in the files of MOC much less getting the same confirmed from the senior officers in accordance with the provisions of Manual of Office CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 202 of 467 Procedure. His claim of having given verbal information to senior officers was thus stated to be highly unbelievable and rather simply an attempt to cover up his acts of omission and commission. It was also submitted that Secretary Coal was though administrative head of the Ministry but in such a vast Ministry as Ministry of Coal was, he was having 15 Sections working under him and thus he could not have been expected to look into the detailed working of each and every section unless anything was specifically brought to his knowledge. Similarly as regard Joint Secretary, Coal it was stated that he too was having work of various wings/sections under him and thus unless specific information is submitted to him by any given section about difficulties being faced by them in complying with the directions issued such as in complying with guidelines issued in the present case, there was no way in which the senior officers of MOC could have known that CA-I Section officials have not complied with the guidelines or that it was difficult for them to comply with the guidelines. It was also submitted that in the routine functioning of Govt. of India the senior officers such as Secretary, or Joint Secretary, in a Ministry works on the basis of trust and belief that the officers of every section under them must have performed their duties properly.
228. It was also submitted that whenever a request was put up by CA-I Section officials seeking services of additional staff from the office of Coal Controller or Coal India Ltd. (hereinafter referred to as "CIL"), the said request was immediately acceded to by the senior CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 203 of 467 officers. It was thus submitted that had CA-1 Section officers/officials brought to their knowledge any such difficulty being faced by them in complying with the guidelines then certainly additional staff would have been arranged for or other necessary steps would have been taken.
229. It was also submitted that working of a Ministry in Central government is governed strictly by Central Secretariat Manual of Office Procedure (herein-after referred to as "Manual of Office Procedure). It was argued that the provisions of Manual of Office Procedure were mandatory to be followed by all officers and officials in the Ministry. It was accordingly submitted that Manual of Office Procedure required that oral instructions if given by any senior officer should be reduced into writing by the officer/official receiving them and should be got confirmed from the officer giving such oral instructions. It was thus argued that any oral statement being now made by PW-1 V.S. Rana, the then Under Secretary, MOC contrary to the written record ought not be relied upon.
230. It was also submitted that even minutes of the meetings of 36th Screening Committee were recorded in accordance with para 54 (4) (c) of the Manual of Office Procedure. It was also submitted that common minutes of all the 5 sittings of 36 th Screening Committee as were held on 7/8.12.2007, 7/8.02.2008 and 03.07.2008 were recorded since the said five sittings can not be construed as separate meetings of Screening Committee warranting recording of separate minutes of the meetings immediately thereafter. It was submitted that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 204 of 467 primarily the discussion which 36th Screening Committee undertook spanned over 5 sittings and thus there was no requirement in law to record separate minutes of each of the sittings immediately after its conclusion and more so when the final recommendations were made by the Screening Committee in its meeting held on 03.07.08 only. Beside placing reliance on para 54 (4) (c) of Manual of Office Procedure, reference was also made to a book titled "Shackleton on the Law and Practice of Meetings". In fact reference to the said book was also made qua various other aspects also i.e. as regard the role of Chairman or that of Member Convener, the quorum required for the meeting or the procedure in which a meeting as that of Screening Committee ought to be held or as to how minutes of a meeting ought to be recorded.
231. As regard the claim of PW-1 V.S. Rana that CA-I Section officials were not having the required technical, legal or financial knowledge to check the applications, it was submitted that they were not required to examine the documents annexed so as to carry out an analysis of the same and they were only required to check as to whether total number of documents as were required to be annexed with the applications in terms of the guidelines were there or not. It was also submitted that to examine the documents annexed with the applications was the job of Administrative Ministries and State Governments. Reference in this regard was made to the minutes of 14th and 18th Screening Committee meetings. It was submitted that even though the said decisions were not part of guidelines issued by CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 205 of 467 MOC but were otherwise being followed in practice by all concerned.
232. As regard the allegation of prosecution that the minutes were silent as to the reason for which M/s VMPL was recommended for allocation of a coal block or as to why other applicant companies who too had applied for allocation of Moira-Madhujore coal block were not recommended, it was submitted that as the decision of the Screening Committee was unanimous so only essence of outcome of the deliberations was recorded. It was submitted that MOC officers/officials were bound to strictly follow the provisions of Manual of Office Procedure an in case of any deviance, the concerned officer/official was required to record reasons for the same in accordance with para 30 of Manual of Office Procedure titled "Deviation from Normal Procedure of Rules". Ld. Counsel for accused public servants also argued that the senior officers of MOC who are now facing trial were in fact never informed by any officer/official of MOC much less by those of CA-1 Section that the applications have not been checked for their eligibility and completeness. It was submitted that in fact from the deposition of PW-1 V.S. Rana, it is clear that CA-1 Section followed the past practice in the processing of applications. While referring to deposition of DW-2 M.R. Attrey and DW-7 Prem Raj Kuar it was submitted that at the time of 34 th Screening Committee the applications were clearly checked for their completeness and thus there is no reason to presume now that the applications received qua 36th Screening Committee were not checked for their completeness.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 206 of 467
233. As regard A-6 K.C. Samria it was submitted by Ld. Counsel Sh. Rahul Tyagi that he was given additional charge of CA-1 Section only on 16.03.2007 and by which date copies of applications were already sent to Administrative Ministries/State Governments concerned and also to CMPDIL. It was submitted that from 16.03.2007 till April 2007 A-6 K.C. Samria was having charge of other sections also and was finally posted to CA section only in the month of May 2007.
234. In fact the whole emphasis of all the three accused persons namely A-4 H.C. Gupta , A-5 K.S. Kropha and A-6 K.C. Samria, was that it was PW -1 V.S. Rana, Under Secretary, MOC and the officials of CA-I Section working under him who were primarily responsible for ensuring compliance with the guidelines issued by MOC. It was also pointed out that while sending copies of the applications to Administrative Ministries/State Governments or to CMPDIL the relevant file was never put up before the senior officers by PW-1 V.S. Rana even though for other innocuous matters such as procuring locks and trunks or for making transportation arrangements the file was put up to the level of Joint Secretary, Coal. It was thus asserted that unless the issue of non-compliance with the guidelines was brought to the notice of senior officers of MOC by PW-1 V.S. Rana or by other officials of CA-I, Section there was no way that the accused MOC officers could have known that the guidelines governing allocation of coal blocks have not been complied with.
235. On the other hand it has been vehemently argued by Ld. Sr. CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 207 of 467 P.P. that PW-1 V.S. Rana has repeatedly stated that provisions of Manual of Office Procedure were not strictly followed in the routine day to day functioning of the Ministry. It was submitted that when various proceedings which admittedly took place in MOC are seen in the light of notings recorded in the file then it is seen that the provisions of Manual of Office Procedure were not strictly followed in the routine day to day functioning. Even as regard the recording of minutes of various meetings of 36th Screening Committee, it was submitted that admittedly separate minutes were recorded qua various sittings of 34th Screening Committee in MOC and more so when 34th Screening Committee was also headed by A-4 H.C. Gupta only with A-5 K.S. Kropha as Member Convener thereof. Ld. Senior P.P. also placed on record certified copy of the deposition of accused public servants as was recorded u/s 315 Cr.PC in another coal block allocation matter pertaining to 36 th Screening Committee meeting itself and as has since been decided by this Court i.e. CBI Vs. M/s KSSPL, to show that in the said trial accused public servants themselves admitted in their deposition that the applications were not checked for their eligibility and completeness in MOC, even though they did claim that they were never informed at the relevant time about the same by any officer/official of CA-1 Section.
236. Before I embark on any discussion qua any of the issues so raised by Ld. Defence Counsels or by Ld. Sr. P.P, I may mention over here that whether the deposition of accused public servants recorded u/s 315 Cr.PC during the trial of another case since decided by this CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 208 of 467 Court can be now referred to or not in the present case will be considered at the time when the relevant issue will come-up for discussion. Thus I would like to place on record a note of caution that in the subsequent part of the judgment the issue as to what all documents relied upon either by prosecution or by defence can be referred to in the present proceedings shall be duly kept in mind and any such documents referred to by any of the parties will be considered purely on the basis of their relevancy, admissibility and proof in accordance with the provisions of Indian Evidence Act, 1872.
I now deem it appropriate to first deal with the primary issue as to whether applications so received in MOC were contemplated to be dealt with under the provisions of Manual of Office Procedure and if yes then to what extent the provisions thereof were followed. The applicability of the said provisions to the Screening Committee proceedings shall also be seen and examined.
G (i) Whether the process of receiving the applications or their subsequent processing in Ministry of Coal was dealt with in accordance with the provisions of Central Secretariat Manual of Office Procedure.
237. As earlier mentioned all during the entire trial Ld. Counsels for the accused MOC officers placed lot of emphasis upon the applicability of provisions of Manual of Office Procedure in the working of Ministry of Coal and Screening Committee. It was vehemently argued that the working of a Ministry in Central Government has to be strictly undertaken in accordance with the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 209 of 467 provisions of Manual of Office Procedure. It was submitted that if any action was undertaken in violation of provisions of Manual of Office Procedure then not only said official/officer is liable to explain reasons for such a deviation/violation but also as to why specific reasons were not recorded in the file for the same. It was also submitted that in the light of provisions of Manual of Office Procedure, no oral evidence contrary to the written records should be held to be admissible.
238. The issue of applicability of provisions of Manual of Office Procedure to the coal block allocation process assumes all the more importance since PW-1 V.S. Rana, the then Under Secretary, MOC stated that in day to day functioning of the Ministry, the provisions of Manual of Office Procedure are not strictly followed. It thus becomes important to see that if the Manual of Office Procedure was applicable then whether in routine day to day functioning, the provisions thereof were strictly followed or not.
239. As regard the applicability of Manual of Office Procedure to the working of a Ministry in Central Government, it would be suffice to state that the Manual of Office Procedure certainly forms the back- bone of process management in the Central Secretariat. As mentioned in the introduction part of the manual in Chapter-I itself the very purpose of introducing such a manual by the Central Government is to attempt to balance the conflicting consideration of speed and priority.
240. In this regard before proceeding further to examine the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 210 of 467 applicability of Manual of Office Procedure to the day to day routine functioning of a Ministry in Government of India. it would be appropriate to first have a brief glance of the scheme of various chapters in which the Manual of Office Procedure has been divided and also the nature of issues which it intends to address.
"Central Secretariat Manual of Office Procedure, Twelfth Edition, May 2003 The Manual has been divided into 18 chapters titled as follows:
CHAPTER I - Introduction CHAPTER II - Definitions CHAPTER III - Machinery of Government CHAPTER IV - Dal-Receipt, Registration and Distribution CHAPTER V - Receipts-Submission and Diarisation CHAPTER VI - Action on Receipts CHAPTER VII - Handling of Receipts under Desk Officer System CHAPTER VIII - Forms and Procedure of Communication CHAPTER IX - Drafting of Communications CHAPTER X - Issue of Drafts CHAPTER XI - File Numbering System CHAPTER XII - Records Management CHAPTER XIII - Security of Official Information and Documents CHAPTER XIV - Checks on Delays CHAPTER XV - Inspections CHAPTER XVI - Office Automation CHAPTER XVII - Electronically Supported Office Procedure System CHAPTER XVIII - Miscellaneous"
241. Thus from a bare perusal of the titles of various chapters, it is clear that Chapter-I provides for introduction and Chapter II provides definition of various terms used in the Manual. Chapter III mentions the machinery of government vide which the functions of government are discharged. Chapter IV to VII, primarily deals with Dak, its CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 211 of 467 Receipt and the Processing thereof. Chapter VIII deals with Forms and Procedure of Communication and Chapter IX and X deals with Drafting of Communications and Issue of Drafts. Chapter XI to XVII primarily deals with maintenance of files and other records in the office. Chapter XVIII provides for miscellaneous provisions.
242. From the aforesaid scheme of different chapters, it is thus clear that the Manual of Office Procedure beside dealing with issues relating to drafting of communications and issue of drafts, maintenance of files and other records primarily deals with Dak its Receipt and its processing thereof. In these circumstances, it will be thus important to briefly note the definition of the word "Dak" and "Receipt" as provided in Para 1 in Chapter II titled "DEFINITIONS"
1 (14) "Dak" includes every type of written communication such as letter, telegram, interdepartmental note, file, fax, e-mail, wireless message which is received, whether by post or otherwise, in any department for its consideration.
1 (47) "Receipt" means Dak after it has been received by the concerned section/officer.
243. Thus keeping in view the aforesaid definition of "Dak" it will be important to first analyze as to whether the applications so received by MOC seeking allotment of captive coal blocks in response to advertisement issued by it can be termed as "Dak" as defined under the "Manual of Office Procedure". In this regard it will be required to be first seen as to whether the applications so invited by way of advertisement can be termed as "Written Communication" as contemplated under the "Manual of Office Procedure".
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 212 of 467
244. Chapter VIII of the "Manual of Office Procedure" provides for Forms and Procedures of Communication. Para 50 of the said Chapter provides for "Forms of Written Communications and Methods of Delivery". The said list of written communications and their methods of delivery as is generally used by a department talks of letter, Demi-official letter, office memorandum, inter-departmental note as forms of written communications and telegram, fax/telex, registered post/registered AD, speed post, office order, order, notification, resolution, press-communique/ note, endorsement, circular, advertisement and e-mail as methods of delivery of written communications. The form of various such written communications have also been explained in Para 50 itself. Para 51 further talks of telephonic communications. The remaining para(s) of Chapter VIII deals with communications between inter-department or intra- department etc. Apparently the applications so received in response to advertisement issued by MOC inviting applications for allotment of captive coal blocks can neither be termed as letter, Demi official letter, office memorandum, inter-departmental note etc. so as to term the said applications as written communication as contemplated either in Para 50 titled "Forms of Written Communications and Methods of Delivery" or as is mentioned in the definition of "Dak" in para 1 (14) of the Manual of Office Procedure. Even though the definition of "Dak" as given in Para 1 (14) is inclusive in nature but even if the ordinary meaning of "Dak" is seen then also it is found that applications so received in MOC in response to advertisement can not be termed as "Dak". The word "Dak" as ordinarily understood and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 213 of 467 as has been defined in "Collins" Dictionary or in "Merriam Webster" Dictionary is a system of mail delivery or passenger transport by relays of bearers or horses stationed at intervals along a route. Moreover Para 1 of Manual of Office Procedure wherein definition of various terms used in the Manual of Office Procedure has been provided starts as under:
"Special meanings - Special meanings to be attached to some of the terms used in the Manual are given below:-"
245. Thus it is clear that the word "Dak" has been used in the Manual not only as a means of communication but also as a form of communication. In this regard it would thus also take its colour from various other forms of communications as are mentioned in the definition given in para 1 (14) itself.
Thus from the aforesaid discussion it is clear that applications seeking allocation of captive coal blocks received in response to advertisement issued by MOC can not be termed as "Dak".
246. However not only from the aforesaid discussion, it is clear that applications so invited by MOC can not be termed as "Dak" as contemplated under the Manual of Office Procedure but from various other circumstances also it is clear that even MOC itself never intended or even contemplated to consider or deal with such applications as "Dak" as per the provisions of Manual of Office Procedure and were never actually dealt with by it as such. Certainly CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 214 of 467 it would have been an ideal situation if at least the other subsequent proceedings relating to coal block allocation process as were carried out in MOC after receipt of applications would have been carried out strictly as per the provisions of Manual of Office Procedure. My subsequent discussion would however show that even subsequent proceedings were also never dealt with strictly as per the provisions of Manual of Office Procedure even by senior officers of MOC (including accused public servants). The provisions of the Manual of Office Procedure prescribing Procedure and Rules in the routine working of Ministry of Coal were in fact observed more in breach.
247. At this stage, I may however make a mark of caution though at the cost of repetition that I am not at all suggesting that Manual of Office Procedure is not required to be followed in working of any Ministry of Central Government but what is being examined over here is the claim made by PW 1 V.S. Rana that in practical day to day functioning provisions of Manual of Office Procedure were not mandatorily followed. At the same time, the claim of accused public servants that the Manual of Office Procedure was required to be mandatorily followed even in routine functioning is also being examined and also that no oral evidence ought to be entertained firstly which is contrary to written record and secondly in those situations where there ought to be written noting/endorsement in accordance with provisions of Manual of Office Procedure and when no such noting/endorsement exists on record.
248. Thus in order to examine as to whether provisions of Manual CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 215 of 467 of Office Procedure were followed in routine day to day functioning of MOC or not, it would be worthwhile to point out a noting dated 07.05.2007 (D-17) recorded by a dealing assistant of CA-I Section. The said noting was duly forwarded by Sh. R.N. Singh the then Section Officer, CA-I Section on 07.05.2007 itself to PW-1 V.S. Rana the then Under Secretary and who further forwarded the same to A-6 K.C. Samria, the then Dy. Secretary CA-1 Section again on 07.05.07 itself. The said noting available at note sheet page 20 in note sheet pages Ex. PW 1/N (Colly) in file Ex. P-13 (Colly) (D-17) read as under:
"As directed by DS (CA-I) over inter-com that a meeting of the Screening Committee has been proposed to to be held under the Chairmanship of Secretary (Coal) on 11.05.2007 at 10.30 A.M. in his Chamber. It has further been directed to issue notice to M/Power/M/Steel/M/Commerce & Industry (DIPP)/CIL/CMPDIL. Accordingly, a draft notice is put up for approval.
 Thus the aforesaid noting clearly shows that Dy. Secretary CA-1 K.C. Samria on inter-com had directed CA-1 Section that a CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 216 of 467 meeting of the Screening Committee has been proposed to be held under the Chairmanship of Secretary (Coal) on 11.05.2007 at 10.30 A.M. in his Chamber. Notices were accordingly directed to be issued to some of the members of Screening Committee as are mentioned in the aforesaid noting. These facts thus show that Dy. Secretary had given direct instructions to CA-1 Section on inter-com and in the process he by-passed Under Secretary, CA-1 Sh. V.S. Rana.
Moreover, when the file was put up with the aforesaid noting by CA-1 Section then A-6 K.C. Samria, the then Dy. Secretary approved the said noting including the draft notices to be issued to members of Screening Committee at his own level. There is at all no explanation in the entire file as to who first of all decided that a Screening Committee meeting be held on 11.05.2007. The purpose of calling such a meeting of Screening Committee is also not mentioned in any of the notings in the files of MOC. Moreover when such a meeting was decided to be held in the chamber of Secretary, Coal himself then it is quite obvious that consent of the officer concerned i.e. Secretary Coal, who incidentally was also Chairman of the Screening Committee must have been also obtained. Moreover as per the submissions made by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha while the role of Chairman of a meeting was to ensure that meeting takes place in an orderly and efficient manner in accordance with all necessary rules and regulations, the role of convener of a meeting was to typically convene a meeting i.e. "causes to come together". It was thus the duty of the Convener to get the notices issued and take all other necessary steps for holding of the meeting.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 217 of 467 It was however also argued by Ld. Defence Counsel that role of a convener ends as soon as the meeting gets convened and thereafter, the Chairman takes over.
250. Thus from the submissions of Ld. Defence Counsel himself, it was the job of Member Convener of Screening Committee i.e. A-5 K.S. Kropha to convene the said meeting. Certainly he could have convened the said meeting only after taking prior approval of the Chairman i.e. of Secretary Coal. Incidentally there is no noting or endorsement in the entire file of MOC which could show that any such prior approval was sought from Chairman Screening Committee i.e. Secretary Coal either to convene such a meeting or even as regard the venue of the meeting that the same be held in his office chamber only. There is again no noting as to for what purpose the said meeting was decided to be convened.
251. At this stage before proceeding further, it would be appropriate to deal with yet one other argument of Ld. Counsels for the accused persons that as per para 5 (9) (c) Manual of Office Procedure a Director/Deputy Secretary was entitled to take orders of the Joint Secretary/Secretary in more important cases either orally or by submission of papers. In fact attention of PW-1 V.S. Rana, the then Under Secretary, MOC was drawn to aforesaid para of Manual of Office Procedure in his cross-examination by Ld. Counsels for accused public servants to point out that an Under Secretary was not entitled to take any oral directions from his senior officers whereas a Director/Deputy Director was permitted to take any such oral CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 218 of 467 directions in his discretion.
252. Before I advert on to deal with the aforesaid argument, it would be worthwhile to refer to the functions of various levels of functionaries i.e. Secretary, Special Secretary/Additional Secretary/Joint Secretary; Director/Deputy Secretary and an Under Secretary as have been mentioned in para 5 (9) of the Manual of Office Procedure.
(9) Functions of various levels of functionaries:
(a) Secretary -- A Secretary to the Government of India is the administrative head of the Ministry or Department. He is principal adviser of the Minister on all matters of policy and administration within his Ministry/Department, and his responsibility is complete and undivided.
(b) Special Secretary/Additional Secretary/Joint Secretary
-- When the volume of work in a Ministry exceeds the manageable charge of a Secretary, one or more wings may be established with Special Secretary/Additional Secretary/Joint Secretary, in charge of each wing. Such a functionary is entrusted with the maximum measure of independent functioning and responsibility in respect of all business falling within his wing, subject to the general responsibility of the Secretary for the administration of the wing as a whole.
(c) Director/Deputy Secretary -- Director/Deputy Secretary is an officer who acts on behalf of the Secretary.
He holds charge of a Secretariat Division and is responsible for the disposal of Government business dealt within the Division under his charge. He should, ordinarily CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 219 of 467 be able to dispose of the majority of cases coming up to him on his own. He should use his discretion in taking orders of the Joint Secretary/Secretary on more important cases, either orally or by submission of papers.
(d) Under Secretary -- An Under Secretary is in charge of the Branch in a Ministry consisting of two or more Sections and in respect thereto exercises control both in regard to the dispatch of business and maintenance of discipline. Work comes to him from the Sections under his charge. As Branch Officer, he disposes of as many cases as possible at his own level but he takes the orders of Deputy Secretary or higher officers on important cases."
253. Thus in the light of aforesaid provisions even if it is presumed for the sake of arguments that A-6 K.C. Samria being the Deputy Secretary had taken oral instructions from Joint Secretary, K.S. Kropha or from Secretary, H.C. Gupta that such a meeting is to be convened then as per Manual of Office Procedure itself and as per the consistent arguments of Ld. defence Counsels themselves such oral instructions ought to have been reduced into writing and got confirmed from the officer(s) concerned i.e. from the officer(s) who gave such instructions. However as already mentioned above the file after it was put up with a noting by Sh. R.N. Singh dealing hand of CA-I Section with draft notices to be sent to certain members of the Screening Committee never travelled beyond the desk of A-6 K.C. Samaria and the draft notices were approved by him only. Thus admittedly such directions as were reduced into writing by the dealing hand in CA-I Section were never got confirmed by A-6 K.C. Samria by putting up the file to any of the senior officers i.e. either to A-5 K.S. Kropha or to A-4 H.C. Gupta. Thus even if any oral directions are presumed to have been given either by A-4 H.C. Gupta or by A-5 K.S.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 220 of 467 Kropha for holding of Screening Committee meeting on 11.05.2007 then also it was the bounden duty of A-6 K.C. Samria to get them approved from the said senior officer(s). However A-6 K.C. Samria chose to further pass on oral instructions to CA-I Section and when the concerned dealing hand in the CA-I Section reduced those instructions into writing then A-6 K.C. Samria did not think it appropriate to send the file to senior officer(s) for getting the oral instructions confirmed. In fact Para 54 (4) of the Manual of Office Procedure which deals with inter-departmental meetings states that no such meeting will normally be convened except under the orders of an officer below the level of Joint Secretary.
254. At this stage, I may mention that though from the factum of subsequent participation in the meeting by A-4 H.C. Gupta and A-5 K. S. Kropha and consequent recording of minutes of the meeting held on 11.05.2007, it can not be disputed that they did not consent to holding of such a meeting but what is being examined over here is whether provisions of Manual of Office Procedure were strictly followed in MOC or not. The entire exercise being undertaken at present is only to examine as to whether PW-1 V.S. Rana rightly claimed that in routine day to day functioning the provisions of Manual of Office Procedure were not mandatorily followed. In fact the aforesaid actions of accused public servants in summoning such a Screening Committee meeting rather goes to suggest that even qua important matters i.e. even as regard summoning of Screening Committee meeting also the provisions of Manual of Office Procedure CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 221 of 467 were not followed.
255. There is yet another important aspect qua the holding of meeting of Screening Committee on 11.05.2007.
Though the said meeting is stated to be a meeting of the Screening Committee but strangely enough and for reasons best known to the accused public servants only, in the said meeting none of the State Government representatives were called. Admittedly various state Government representatives were Members of Screening Committee and once again there is nothing in the file of MOC as to why representatives of State Governments were not called for in the said meeting or who took the said decision to not to invite them. The noting of Sh. R.N. Singh clearly says that notice have been directed to be issued to Ministry of Power/Ministry of Steel/Ministry of Commerce (DIPP), CIL and to CMPDIL.
256. Apart from the aforesaid circumstances there is yet another instance regarding meeting held on 11.05.2007, wherein provisions of Manual of Office Procedure were apparently not complied with.