257. It has been the claim of accused public servants during the course of trial that agenda of meeting held on 11.05.2007 was duly prepared and circulated to the members of Screening Committee. While referring to the deposition of PW-11 N.R. Dash it was pointed out that such an agenda was though not available in the files of MOC but was certainly available in the files of Ministry of Steel.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 222 of 467 Though, at this stage I am not entering into any discussion as regard the contents of said agenda or as to in what circumstances the same came to be available in the files of Ministry of Steel but the only point being highlighted over here is that the entire notings in the files of MOC are completely silent as regard preparation of any such agenda. Even the office memorandum dated 07.05.2007 Ex. PW-1/N1 sent to Members of Screening Committee pursuant to approval given by A-6 K.C. Samria calling upon them to attend the Screening Committee meeting to be held on 11.05.2007 is also completely silent that any such agenda note is being sent either along with the office memorandum or that the same will be sent subsequently. There is no noting or office memorandum available either in the files of MOC or in the files of Ministry of Steel which could show that any such agenda note of the meeting was indeed sent by MOC.
258. Though Ld. Counsels for the accused persons have tried to argue that all the files of MOC have not been supplied to them and thus, it cannot be concluded that there does not exist any file where such an agenda was prepared. The aforesaid bald argument though has been repeatedly taken up by the accused persons simply with a view to create doubts about the veracity of prosecution case by stating that complete record has not been produced but I may state that from the sequence of various notings as are available in different files of MOC and especially when they are considered in chronological order, then it is clear that no file of MOC pertaining to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 223 of 467 period under discussion over here is missing.
259. In fact from a perusal of file Ex P-13 (Colly) (D-17) of MOC which contains the notings regarding the process followed towards issuance of advertisement for inviting applications and the subsequent proceedings regarding summoning of Screening Committee meetings, it is clear that whenever any agenda was to be prepared for a proposed Screening Committee meeting then appropriate notings were recorded in the same file itself by the concerned officials. Thus it can not be even presumed for the sake of arguments that while noting regarding holding of Screening Committee meeting to be held on 11.05.2007 and consequent issuance of notice to members of Screening Committee was recorded in this file only i.e. in file Ex. P-13 (Colly) (D-17) but for preparation of agenda of the meeting the relevant noting must have been put in some other file.
260. Thus, once again there is a situation where there is no noting in the files of MOC which could show that while summoning the meeting of Screening Committee on 11.05.2007 any agenda thereof was prepared. Moreover even if it is presumed that such an agenda was indeed prepared then there is no noting in the files of MOC as to who prepared the said agenda or who approved the same. Yet again the notice of the meeting sent to members of Screening Committee is also completely silent that any such agenda of meeting is being enclosed along with the notice or is being separately sent. There is again no noting or office memorandum available in the files of MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 224 of 467 or even in the files of Ministry of Steel which could show that such an agenda was sent by MOC. In fact Para 54 (4) (b) of the Manual of Office Procedure which talks about inter-departmental meetings states that it will be ensured that an agenda setting up clearly the points for discussion is prepared and sent alongwith the proposal for holding the meeting, allowing adequate time for the representatives of other departments to prepare themselves for the meetings.
261. Thus, even if it is presumed for the sake of arguments that such an agenda was indeed sent by MOC and on account of which the same was found in the files of Ministry of Steel but still the proceedings in the files of MOC as discussed above conclusively establish that the provisions of Manual of Office Procedure were not followed in even important matters in MOC much less in routine day to day functioning and that too by accused public servants themselves also.
262. I have thus no reason to doubt the claim made by PW 1 V.S. Rana that the provisions of Manual of Office Procedure were not mandatorily followed in routine day to day functioning in the Ministry or that at times certain matters were taken up for consideration on verbal directions only or verbal instructions given by senior officers used to be followed. I have also thus no reason to believe the claim of accused public servants that the proceedings relating to coal block allocation matters were conducted strictly in accordance with the provisions of Manual of Office Procedure only.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 225 of 467 In fact during the course of subsequent discussion I shall be highlighting various other instances also where the provisions of Manual of Office Procedure were again not followed even by the senior officers of MOC.
263. For these reasons only, the argument of Ld. Counsels for accused public servants that oral deposition of the witnesses where written record ought to be there in accordance with Manual of Office Procedure and especially where no such written record exists be not considered, clearly does not hold ground. However it will be correct to state that if any oral deposition which is contrary to the written record is sought to be put forth, then it will not be appropriate to rely upon the said oral deposition unless there is a reason to doubt the correctness of the written record. Thus, at the cost of repetition I may state that if no written record exists on any aspect then oral deposition of the witnesses pertaining to the said event or aspect can always be considered and if found reliable and credible then the same can always be relied upon.
G (ii) Whether the provisions of Manual of Office Procedure were applicable to the proceedings of Screening Committee.
264. As regard the recording of minutes of various meetings of 36 th Screening Committee as were held on 7/8.12.2007, 7/8.02.2008 and 03.07.2008, it has been argued by Ld. Counsels for the accused public servants that all such meetings were in fact in the nature of extended sittings of 36th Screening Committee and as they were all part of one common meeting so their minutes were recorded in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 226 of 467 common after the conclusion of final meeting held on 03.07.08 i.e. when the final recommendations of the Screening Committee were arrived at. As regard the contents of the minutes it was argued that the same have been recorded in accordance with the provisions of Section 54 (4) (c) of Manual of Office Procedure and as all the decisions so taken were unanimous so instead of recording detailed reasons for the same, the essence and outcome of the deliberations was only recorded.
265. Ld. Sr. P.P. Sh. Sanjay Kumar has however strongly opposed the said contention stating that the minutes recorded by accused MOC officers are so cryptic and vague that nothing is ascertainable as to on what basis recommendation in favour of any company including M/s VMPL was made. It was submitted that the minutes ought to have disclosed not only the reasons for which the Screening Committee arrived at any given decision but it also ought to have mentioned the views/opinion expressed by various members during the course of discussion in the meeting. It was also pointed out that at the time of 34th Screening Committee with which A-4 H.C. Gupta and A-5 K.S. Kropha were associated, separate minutes were recorded with respect to each sitting of the Committee.
My Discussion
266. Before I advert on to discuss this limb of argument put-forth by Ld. Counsels for the accused public servants, it would be worthwhile to have a brief glance over para 54 of Manual of Office Procedure. The same read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 227 of 467 "Forms and Procedure of Communication.
54. Inter-departmental consultation --
(1) Inter-departmental consultation may take the form of inter- departmental notes, inter-departmental meetings or oral discussions.
(2) In making written inter-departmental references, the following points should be observed:
(a) Inter-departmental references will normally be made under the directions of an officer not below the rank of Under Secretary or as may be provided by the departmental instructions.
(b) The points on which the opinion of other departments is sought or which it is desired to bring to their notice should be clearly stated.
(c) Where possible, the drafts of the orders proposed to be issued may also be shown to the departments sought to be consulted.
(d) When it is necessary to consult more than one department on a case, such consultation may be effected simultaneously by self-contained inter-departmental notes unless:
(i) it involves copying of a large number of documents available on the file; or
(ii) the need for consulting the second Department would arise only after the views of the first have become available.
(3) (a) When such a reference requires concurrence of one or more Ministries under the Government of India (Transaction of Business) Rules, the following further points should be observed:
(i) The originating Ministry should invariably prescribe a time-limit when calling for comments or concurrence from other Ministries.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 228 of 467
(ii) In case any of the Ministries so consulted is not in a position to send its comments/concurrence within the prescribed time-limit, it should write back promptly, in any case before the prescribed time-limit, and indicate the additional time they would require for furnishing their final reply.
(b) When such a reference does not require such concurrence under the Rules, the originating Ministry need not wait for the comments of other Ministry beyond the prescribed time-limit, and it should feel free to go ahead with its scheme/proposal without waiting any longer.
(c) The initiating Ministry should always feel free to recall its file from another Ministry, to which such a reference has been made on a file, if such a course is required to be adopted for expediting the process of decision making in the case. Such a decision to recall a file should be taken at a level not lower than that of a Branch Officer in the originating Ministry.
(4) Inter-departmental meetings may be held where it is necessary to elicit the opinion of other departments on important cases and arrive at a decision within a limited time. No such meeting will normally be convened except under the orders of an officer not below the level of Joint Secretary. In respect of such meetings, it will be ensured that:
(a) the representatives attending the meeting are officers who can take decisions on behalf of their departments;
(b) an agenda setting up clearly the points for discussion is prepared and sent along with the proposal for holding the meeting, allowing adequate time for the representatives of other departments to prepare themselves for the meeting; and
(c) a record of discussions is prepared immediately after the meeting and circulated to the other departments concerned, setting out the conclusions reached and indicating the department or departments responsible for taking further action on each conclusion.
(5) On occasions it may be necessary to have oral discussions (including teleconferencing or video conferencing) with officers of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 229 of 467 other departments, e.g., when:
(a) a preliminary discussion between the officers of the departments concerned is likely to help in the disposal of the case;
(b) it is desirable to reach a preliminary agreement before proceeding further in the matter;
(c) inter-departmental noting reveals a difference of opinion between two or more departments; or
(d) it is proposed to seek only information or advice of the department to be consulted.
The result of such oral consultation should be recorded in a single note on the file by the officer of the department to which the case belongs. The note will state clearly the conclusions reached and the reasons thereof. A copy of the note will also be sent to the departments consulted in order that they have a record of the conclusions reached.
(6) Reopening of decisions arrived at after proper inter- departmental consultations should normally be avoided. In case adequate grounds exist for re-opening of such issues, it should be settled after a quick re-assessment.
(7) In case two or more departments persist with their respective view points leading to a deadlock or impasse, such issues should be sorted out by raising the level of consideration to a forum like the Committee of Secretaries headed by the Cabinet Secretary or to the level of Ministers concerned, to arrive at a quick decision without continuing with protracted correspondence/discussions among the disputing departments.
(8) Nodal Ministries/Departments, which render advice to various departments and do so through different Divisions, will ensure that the views expressed by them at inter-departmental discussions are consistent, and they are not found deviating from their views on different occasions. The expression of conflicting views by the different Divisions of the same department during such inter-departmental discussions should be discouraged."
(Emphasis supplied by me) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 230 of 467
267. As the title of para 54 shows that the same pertains to Inter- departmental consultation so it will be appropriate to refer to the definition of the word "Department" as is mentioned in para 1 (16) of Manual of Office Procedure. The same will provide an idea as to what is meant by an inter-departmental meeting.
Para 1 (16) of Manual of Office Procedure read as under:
"1(16) 'Department' means any of the ministries, departments, secretariats and offices mentioned in the First Schedule to the Government of India (Allocation of Business) Rules."
268. In this light if first schedule to the Government of India (Allocation of Business) Rules, 1961 is referred to then it is found that State Governments or any Department/Ministries of State Governments are not mentioned over there. In these circumstances the inter-departmental consultation referred to in para 54 can thus pertain to only such consultations in which various Ministries, Departments, Secretariats and offices of Central Government as have been referred to in first schedule of the Allocation of Business Rules, 1961 are involved. Certainly, if the State Governments are also involved in such consultation then such a consultation will become not only an inter-departmental consultation but also inter- governmental consultation. In fact it has been the case of accused public servants themselves and rightly so that the Screening Committee was an inter-ministerial/inter-governmental body. Thus to the meetings of such a body, the provisions of para 54 of Manual of Procedure can certainly not apply for the same pertains to only inter-
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 231 of 467 departmental consultations. In fact a careful perusal of the Manual of Office Procedure further shows that the same is primarily meant to apply to the functioning of various Ministries/Department, offices, Secretariats of Central Government and not to the functioning of a body whose structure is not only inter-departmental but also inter- governmental.
269. Thus while provisions of Manual of Office Procedure may be held to be applicable to the functioning of MOC but it can not be presumed that the same were applicable to the functioning of Screening Committee also.
270. Be that as it may the question which however arises in these circumstances is as to how the Screening Committee ought to have functioned or what procedure ought to have been followed by it. It will be also required to be examined as to how the minutes of 36 th Screening Committee meetings ought to have been recorded.
271. This issue in fact brings us to the next important aspect of the matter i.e. the purpose and effect of guidelines governing allocation of captive coal blocks as were issued by MOC. My subsequent discussion will thus show as to what was the purpose of issuing the said guidelines and whether the said guidelines were binding upon MOC and Screening Committee or not.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 232 of 467 G (iii) Whether the guidelines issued by MOC governing allocation of captive coal blocks were binding and were mandatorily to be followed by MOC officers and by the Screening Committee.
272. In 1993 when the Coal Mines (Nationalisation) Act, 1973 was amended so as to provide for allocation of captive coal blocks to companies in private sector also, who were engaged in specified end uses, an inter-departmental/inter-governmental body called the "Screening Committee" was constituted in MOC to screen all such proposals as may be received in MOC seeking allocation of captive coal blocks. Beside MOC which was the Nodal Ministry, various other Administrative Ministries such as Ministry of Steel, Ministry of Power or Department of Industrial Promotion and Policy, various State Governments where coal blocks which were proposed to be allocated were situated or the states where the proposed end use project was to be situated were members of Screening Committee. Central Mine Planning & Design Institute Limited, (CMPDIL), Coal India Ltd. (CIL) and its other subsidiary companies were also part of the Screening Committee. The purpose was to have views of all concern at one single platform so as to not only expedite the coal block allocation process but to also have a body which may screen the proposals in an objective and transparent manner. Thus the various Screening Committees started laying down its own procedures to screen the proposals and to make its recommendations in an objective and transparent manner.
273. Though initially no advertisement used to be issued by MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 233 of 467 for inviting applications for allocation of captive coal blocks but the 34th Screening Committee issued an advertisement in the year 2005 inviting applications for allocation of captive coal blocks. The past practices and procedure as used to be followed by the earlier Screening Committees were also compiled at one place and with suitable additions/modifications, guidelines were issued to govern the coal block allocation process. Similarly at the time of 35 th and 36th Screening Committee also applications were invited by way of an advertisement. After making suitable modifications in the earlier guidelines issued and beside incorporating the recommendations of 7th Energy Co-ordination Committee headed by Prime Minister and as were communicated to MOC vide I.D. note of PMO dated 25.07.2006 Ex. PW 1/A (Colly) (D-43), fresh guidelines governing allocation of captive coal blocks were issued by MOC. Thus these guidelines issued at the time of inviting applications in November 2006 were to govern the allocation of captive coal blocks by 35 th and 36th Screening Committees. In the cross-examination of PW-1 V.S. Rana he admitted as correct a suggestion put to him by Ld. Defence Counsel that applications received in pursuant to advertisement issued by MOC in November 2006 were to be governed by the guidelines as were issued alongwith the advertisement in 2006 only and that the guidelines issued in 2003 were not applicable. Subsequently in response to a Court question put to him under section 165 Indian Evidence Act, he again reiterated the said fact.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 234 of 467
274. It has been however vehemently argued by Ld. Counsels for the accused public servants that as the guidelines issued by MOC were not issued under any Act, rules or regulations having any statutory backing or force and were not even published in the Gazette or authenticated in the manner required by law for giving the guidelines force of law so the said guidelines which were only in the nature of administrative guidelines/instructions issued by MOC did not cast any legal duty. It was thus argued that since the said guidelines did not have any binding force of law so any act of omission or in contravention of such instructions/guidelines does not become illegal per se unless the same also contravened some law, making such act or omission illegal. [It was however also argued by Ld. Defence Counsel as an alternative argument that actually no violation of guidelines actually took place. I shall be however dealing with the said issue separately at a later stage.]
275. In support of his aforesaid submissions that guidelines issued by MOC were not binding Ld. Defence Counsel placed reliance on the following cases:
(1) G.J. Fernandez vs. State of Mysore [MANU/SC/0050/1967] (2) Chief Commercial Manager, South Central Railway, Secunderabad vs. G. Ratnam [MANU/SC/7843/2007] (3) R. Sai Bharathi V. J. Jayalalitha and Ors. MANU/ SC/ 0956/ 2003 (4) Gulf Goans Hotels Company Ltd. Vs. Union of India [MANU/SC/0848/2014] CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 235 of 467 My Discussion
276. Before I advert on to discuss the aforesaid issue, it would be pertinent to mention that though the said guidelines were issued by MOC purportedly to provide a mechanism to implement the provisions of Mine and Minerals Act, 1957 and that of Coal Mines Nationalisation Act, 1973 (herein-after referred to as CMN Act, 1973) as it stood amended in the year 1993 but in its order dated 25.08.14 Hon'ble Supreme Court observed that the procedure adopted by MOC and by Screening Committee was not in accordance with the provisions of aforesaid Acts. However Hon'ble Supreme Court in the said order proceeded further to consider various acts undertaken by MOC and the Screening Committee in the allocation of various captive coal blocks assuming that Central Government has powers to allot captive coal blocks under Mines and Minerals Act, 1957 and CMN Act, 1973. Thus the exercise being undertaken by this Court in the present proceedings is also primarily confined to examination of various acts of omission and commission of accused MOC officers as were undertaken by them in the coal block allocation process which led to allocation of Moira Madhujore coal block in favour of M/s VMPL, with the assumption that the Central Government was acting under the two Acts believing bonafidely that it has power to so act. Thus what is required to be seen in the present proceedings is whether the rules/regulations or procedures as were devised by MOC for allocating captive coal blocks were adhered to by the accused MOC officers and by the Screening Committee and if not, then CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 236 of 467 reasons thereof and the intention in not doing so. However it is certainly true that before proceeding to examine the aforesaid aspects it also needs to be seen as to whether the guidelines so issued by MOC governing allocation of captive coal blocks were binding in nature or not, for only then the issue relating to any violation of the guidelines can be more appropriately examined. The said exercise will only thereafter lead to examination of the issue as to whether any culpability can be attributed to the accused MOC officers for any violation of said guidelines or not.
277. As earlier also mentioned the very purpose of issuance of guidelines by MOC so as to govern allocation of captive coal blocks and their subsequent uploading on the website of MOC was to bring them to the notice of public at large. A bare reading of said guidelines [as have been earlier reproduced] shows that the same not only controlled but also regulated the exercise of discretion by MOC and the Screening Committee in allocation of captive coal blocks. The purpose was also to inform the public at large as to how the allocation of captive coal blocks shall be made by MOC.
278. In this regard it will be worthwhile to first refer to some observations of Hon'ble Supreme Court in cases where Government was dealing with private persons in matters relating to award of contracts, grant of largesse etc. In the case Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal (1975) 1 SCC 70, it was observed by Hon'ble CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 237 of 467 Supreme Court as under:
"When the Government is trading with the public, 'the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions'. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure."
(Emphasis supplied by me)
279. The aforesaid observations were again approved by Hon'ble Supreme Court in the case Ramana Dayaram Shetty Vs. International Airport Authority of India 1979 (3) SCC 489 as under:
"This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant."
(Emphasis supplied by me)
280. In Kasturi Lal Lakshmi Reddy Vs. State of J&K, 1980 4 SCC 1, Hon'ble Supreme Court while again referring to Ramana Dayaram Shetty case (Supra) further observed as under:
"10. It was pointed out by this Court in "Ramana Dayaram Shetty v. International Airport Authority of India [1979 (3) SCC 489] that with the growth of the welfare state, new forms of property in the shape of Government largess are developing, since the Government is increasingly assuming the role of regulator and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 238 of 467 dispenser of social services and provider of a large number of benefits including jobs, contracts, licences, quotas, mineral rights etc. There is increasing expansion of the magnitude and range of Governmental functions, as we move closer to the welfare state, and the result is that more and more of our wealth consists of these new forms of property. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. The law has however not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights, while others have been given legal protection not only by forging procedural safeguards but also by confining, structuring and checking Government discretion in the matter of grant of such largess. The discretion of the government has been held to be not unlimited in that the Government cannot give largess in its arbitrary discretion or at its sweet will or on such terms as it chooses in its absolute discretion. There are two limitations imposed by law which structure and control the discretion of the government in this behalf. The first is in regard to the terms on which largess may be granted and the other, in regard to the persons who may be recipients of such largess.
11. So far as the first limitation is concerned, it flows directly from the thesis that, unlike a private individual, the State cannot act as it pleases in the matter of giving largess. Though ordinarily a private individual would be guided by economic considerations of self-gain in any action taken by him, it is always open to him under the law to act contrary to his self-interest or to oblige another in entering into a contract or dealing with his property. But the government is not free to act as it likes in granting largess such as awarding a contract or selling or leasing out its property. Whatever be its activity, the government is still the government and is, subject to restraints inherent in its position in a democratic society. The constitutional power conferred on the government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be exercised for the public good. Every activity of the government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the government must be in public interest; the government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated.
If the government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 239 of 467 liable to be tested for its validity on the touch-stone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid.
12. Now what is the test of reasonableness which has to be applied in order to determine the validity of governmental action. It is undoubtedly true, as pointed out by Patanjali Shastri, J. in State of Madras v. V.G. Rau,[1952] SCR 597 that in forming his own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judge participating in the decision, would play an important part, but even so, the test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The concept of reasonableness in fact pervades the entire constitutional scheme. The interaction of Articles 14, 19 and 21 analysed by this Court in Maneka Gandhi v. Union of India[1978] 2 SCR 621 clearly demonstrated that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and, as several decisions of this Court show, this concept of reasonableness finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the directive principles. It has been laid down by this Court in E.P.
Royappa v. State of Tamil Nadu [1974] 2 SCR 348, and Maneka Gandhi case that Article 14 strikes at arbitrariness in State action and since the principle of reasonableness and rationality, which is legally as well as philosophically an essential element of equality or non-arbitrariness, is protected by this article, it must characterise every governmental action, whether it be under the authority of law or in exercise of executive power without making of law. So also the concept of reasonableness runs through the totality of Article 19 and requires that restrictions on the freedoms of the citizen, in order to be permissible, must at the best be reasonable. Similarly Article 21 in the full plenitude of its activist magnitude as discovered by Maneka Gandhi case, insists that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law and such procedure must be reasonable, fair and just. The Directive Principles concretise and give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21 and other Articles enumerating the fundamental rights. By defining the national aims and the constitutional goals, they setforth the standards or norms of reasonableness which must guide and animate governmental action. Any action taken by the Government with a view to giving effect to any one or more of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 240 of 467 the Directive Principles would ordinarily, subject to any constitutional or legal inhibitions or other over-riding considerations, qualify for being regarded as reasonable, while an action which is inconsistent with or runs counter to a directive principle would prima facie incur the reproach of being unreasonable.
13. So also the concept of public interest must as far as possible receive its orientation from the directive principles. What according to the founding fathers constitutes the plainest requirement of public interest is set out in the directive principles and they embody par excellence the constitutional concept of public interest. If, therefore, any governmental action is calculated to implement or give effect to a directive principle, it would ordinarily, subject to any other overriding considerations, be informed with public interest.
14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that some directive principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to these considerations to only illustratively, for there may be an infinite variety of considerations which may have to be taken into account by the government in formulating its policies and it is on a total evaluation of various considerations which have weighed with the government in taking a particular action, that the Court would have to decide whether the action of the government is reasonable and in public interest. But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the governmental action is CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 241 of 467 reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the government is unreasonable or without public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the government in taking action and therefore the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. It is imperative in a democracy governed by the rule of law that governmental action must be kept within the limits of the law if there is any transgression the Court must be ready to condemn it. It is a matter of historical experience that there is a tendency in every government to assume more and more powers and since it is not an uncommon phenomenon in some countries that the legislative check is getting diluted, it is left to the Court as the only other reviewing authority under the Constitution to be increasingly vigilant to ensure observance with the rule of law and in this task, the court must not flinch or falter. It may be pointed out that this ground of invalidity, namely, that the governmental action is unreasonable or lacking in the quality of public interest, is different from that of mala- fides though it may, in a given case, furnish evidence of mala-fides.
15. The second limitation on the discretion of the government in grant of largess is in regard to the persons to whom such largess may be granted. It is now well settled as a result of the decision of this Court in Ramana D. Shetty v. International Airport Authority of India that the government is not free like an ordinary individual, in selecting the recipients for its largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The law is now well established that the Government need not deal with anyone but if it does so, it must do so fairly without discrimination and without unfair procedure. Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess the government cannot act arbitrarily at its, sweet will and, like a private individual, deal with any person it pleases, but its action must be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 242 of 467 in conformity with some standard or norm which is not arbitrary, irrational or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Article 14. The Court referred to the activist magnitude of Article 14 as evolved in E. P. Royappa v. State of Tamil Nadu and Maneka Gandhi case and observed that it must follow as a necessary corollary from the principle of equality enshrined in Article 14 that though the State is entitled to refuse to enter into relationship with anyone, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness and non-
discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non-discriminatory ground. (SCC p. 512, para 21) This decision has reaffirmed the principle of reasonableness and non-arbitrariness in governmental action which lies at the core of our entire constitutional scheme and structure."
(Emphasis supplied by me)
281. In Food Corpn. of India Vs. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71, Justice J.S. Verma speaking for the Bench observed as under: (SCC p. 76, paras 7 and 8) "In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law. A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is `fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 243 of 467 requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
12. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant.
A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
(Emphasis supplied by me)
282. In Navjyoti Coop. Group Housing Society Vs. Union of India AIR 1993 SC 155 Hon'ble Supreme Court held as under:
"In the aforesaid facts, the Group Housing Societies were entitled to 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of 'legitimate expectation' may have a number of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 244 of 467 different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of 'legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on 'legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England - Fourth Edition (Re-issue). We may also refer to a decision of the House of Lords in Council of Civil Service Union v. Minister for the Civil Service. It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons.
It may be indicated here that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. Within the conspectus of fair dealing in case of 'legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in. We, have not been shown any compelling reasons taken into consideration by the Central Government to make a departure from the existing policy of allotment with reference to seniority in Registration by introducing a new guideline."
283. In the case Sudhir Shantilal Mehta Vs. CBI (2009) 8 SCC 1, while dealing with certain directions issued by RBI to public sector banks, Hon'ble Supreme Court observed as under:
67. It is one thing to say that any circular letter issued by the Reserve Bank of India being not within the public domain would not be law but it would be another thing to say that it did not contain any direction of law so as to attract the liability in terms of Section 405 of the Penal Code. Lawful directions were issued by the Reserve Bank of India. The circular letter was meant for all scheduled banks. The authorities and/or officers running the affairs of the scheduled banks therefore were aware thereof. If it CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 245 of 467 is binding on the banks, it would be binding on the officers.
68. Any act of omission or commission on the part of any authority of the Bank would amount to acting in violation of any direction of law. A direction of law need not be a law made by the Parliament or a Legislature; it may be made by an authority having the power therefor; the law could be a subordinate legislation, a notification or even a custom.
(Emphasis supplied by me)
284. In the case Rajiv Kumar Vs. State of U.P. (2017) 8 SCC 791, Hon'ble Supreme Court observed as under:
"On appreciation of evidence and materials on record, both the trial court and the High Court recorded concurrent findings that the appellants acted in clear abuse of position, Plot No.27 in the developed Sector-14A was converted from guest house to 'residential' and in violation of the norms and circulars, the same was allotted to the appellant to gain pecuniary advantage to him (Rajiv Kumar). The concurrent findings recorded by the courts below are well balanced and we do not find any reason warranting interference."
(Emphasis supplied by me)
285. At this stage, it would be however pertinent to mention once again that in the present proceedings this Court is not carrying out any judicial review of the actions be that of MOC officers or that of the Screening Committee. What is being examined is whether the actions of accused public servants i.e. that of MOC officers involved in the process of allocation of Moira-Madhujore coal block in favour of company M/s VMPL had any element of malafide intention i.e. whether there was any culpability in the said actions or not. In the case Sudhir Shantilal Mehta (Supra), Hon'ble Supreme Court while CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 246 of 467 examining the actions of certain bank officers who acted in violation of guidelines issued by RBI also dealt with the issue of criminal liability of the officers and interalia observed as under in para 64:
"The act of criminal breach of trust per se may involve a civil wrong but a breach of trust with an ingredient of mens rea would give rise to a criminal prosecution as well."
286. It is in the light of aforesaid well settled proposition of law that it needs to be seen as to whether the guidelines issued by MOC governing allocation of captive coal blocks were binding upon the MOC officers and also upon the Screening Committee or not. As earlier also mentioned, the guidelines so issued by MOC and as were also uploaded on the website of MOC for information of the public at large were clearly issued to regulate the exercise of discretion by the MOC officers and that of the Screening Committee in the matter of allocation of captive coal blocks. The purpose was to rule out any element of arbitrariness in the said exercise of discretion. The said guidelines undisputedly provided the logical and reasoned steps as to how the MOC officers and the Screening Committee shall undertake the decision making process vide which allocation of captive coal blocks in favour of private applicant companies will be made. Yet another important purpose of issuance of guidelines was also to inform the public at large as to how the exercise of allocation of captive coal blocks shall be undertaken and that the discretion of Ministry of Coal or that of Screening Committee was not unfettered. It was thus represented to the public at large that MOC will undertake the said exercise fairly without discrimination and by following a fair CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 247 of 467 procedure.
287. At this stage, it would be now also worthwhile to refer to the following case law as were relied upon by Ld. Counsels for the accused public servants while arguing that the guidelines so issued by MOC were not binding as they did not have the force of law.
(1) G.J. Fernandez vs. State of Mysore [MANU/SC/0050/1967] (2) Chief Commercial Manager, South Central Railway, Secunderabad vs. G. Ratnam [MANU/SC/7843/2007] (3) R. Sai Bharathi V. J. Jayalalitha and Ors. MANU/ SC/ 0956/ 2003 (4) Gulf Goans Hotels Company Ltd. Vs. Union of India [MANU/SC/0848/2014] A bare perusal of the aforesaid case law(s) however shows that in all these matters the enforcement of the guidelines or regulations issued by the Department were sought by a third person claiming himself to be either a victim or a person affected by the decision of the public servants concerned. It is in that context Hon'ble Supreme Court observed that since the said guidelines did not have the force of law so no right vest in a third party to seek enforcement of said guidelines and regulations. However at the same time, Hon'ble Supreme Court also observed that the department concerned may however initiate departmental proceedings against its officers responsible for following the said guidelines or to act in accordance with the said guidelines, if there is any act of omission or neglect to comply with the said guidelines.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 248 of 467
288. From the aforesaid observations, it is thus clear that in so far as the officers of the department which issued those guidelines are concerned they were clearly bound to follow the said guidelines. The said officers can always be punished by the Government or department concerned for violation of the said guidelines by them. It is altogether a different matter that such a violation of the guidelines may in a given case entails initiation of departmental enquiry only but at the same time the violation of said guidelines in a given case may also show existence of mensrea on the part of public servants concerned and in which case penal action may also be initiated against them.
289. Thus in the light of aforesaid circumstances, I may state that in so far as the guidelines issued by MOC governing allocation of captive coal blocks are concerned, the same though may not be termed as law under Article 13 of the Constitution of India but were clearly binding upon the accused MOC officers. It does not lie in the mouth of accused MOC officers to say that we were not bound by the said guidelines since they did not have the force of law. The said guidelines clearly sought to control the exercise of discretion by MOC and of the Screening Committee in disbursing the larges i.e. allocation of nationalized natural resources (Coal) of the country by way of allocation of captive coal blocks and it was represented by MOC to the public at large as to how the applications are to be submitted or how the same will be dealt with by MOC and by the Screening Committee. It clearly casted a mandatory duty upon the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 249 of 467 accused public servants to act in accordance with the said guidelines. By no stretch of imagination, the accused MOC officers can claim that even though the guidelines were issued by them intimating the public at large as to how captive coal blocks shall be allocated but while exercising the said discretion they were not bound to follow the said guidelines. In fact the said guidelines in no way took away the discretion either from the MOC officers or from the Screening Committee but simply regulated the exercise of such discretion so vested in them, lest their actions may venture into the arena of unreasonableness, arbitrariness or in any sort of illegality.
290. The guidelines clearly mandated certain eligibility conditions and certain requirements to be fulfilled by the applicant companies, failing which, it was mentioned in the guidelines itself that the applications will be rejected. It was also clarified in the guidelines itself as to in what manner the interse priority of various competing applicant companies who have applied for any given coal block shall be arrived at. In fact mentioning of these very factors in the guidelines were the prime reasons for various applicant companies to inflate their various claims so as to show a better status/stage of preparedness qua their proposed end use project. A legitimate expectation thus arose in the mind of various applicant companies that their applications will be considered objectively and in a transparent manner in accordance with the guidelines so issued by MOC. In these circumstances it can not be claimed by accused MOC officers that they were not bound by the guidelines so issued by MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 250 of 467 governing allocation of captive coal blocks and as were also uploaded on the website of MOC.
291. One may however argue that the doctrine of legitimate expectation is a principle of Administrative Law having no application in the present proceedings. However, it would be worthwhile to clarify that in so far as the issue raised by Ld. Counsels for the accused persons that the guidelines were not having any binding force of law is concerned, the matter certainly fell exclusively in the domain of Administrative Law and to that extent while examining the said issue it is completely justified that the doctrine of legitimate expectation is held to be applicable.
292. Thus having concluded that the guidelines so issued by MOC were binding upon the MOC officers as well as upon the Screening Committee, I shall now proceed further to examine as to whether there was any violation of the guidelines in the processing of applications in MOC i.e. whether the applications were checked for their eligibility and completeness or not. It shall also be examined as to whether accused MOC officers were aware of the process undertaken in MOC regarding processing of applications before the same were considered by the Screening Committee. If the answer to the aforesaid question is in affirmative then it will be examined as to whether the said violation entails any culpability on the part of accused MOC officers or not.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 251 of 467 G (iv) Whether in the processing of applications in MOC there was any violation of guidelines governing allocation of captive coal blocks i.e. whether the applications were checked for their eligibility and completeness or not.
293. As earlier also mentioned the guidelines issued by MOC clearly mandated under the title "Processing of application" that the applications received in MOC in five copies after being checked for their eligibility and completeness would be sent to the Administrative Ministries and State Governments concerned for their evaluation and recommendation. The guidelines also specified certain documents which were required to be annexed by every applicant company alongwith its applications. It was also stated that applications without the said accompaniments would be treated as incomplete and shall be rejected. Thus in the light of aforesaid nature of guidelines, it becomes clear that before copies of the applications were to be sent to administrative Ministries/State Governments, the same were required to be checked in MOC as regard their completeness and eligibility. As regard eligibility, the primary requirement for every applicant was that it should be a company registered under Indian Companies Act. The second requirement of being eligible was that the company should be engaged either in generation of power or production of iron or steel or in production of cement. After any applicant company qualified this first stage of eligibility its application was required to be checked for completeness. As earlier also mentioned for an application to be complete in accordance with guidelines all the documents as were specified in the guidelines CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 252 of 467 ought to have been annexed with the application.
294. It is qua this aspect of checking that there has been considerable dispute all through the trial. PW-1 V.S. Rana though initially stated that the applications were checked for their completeness but subsequently stated that only a cursory glance was given to the applications. However, subsequently during the course of his cross-examination he stated that only the availability of processing fee i.e. demand draft of Rs. 10,000/- was checked. Similar was the claim of DW-7 Prem Raj Kuar the then Section Officer, CA-I Section, MOC who was examined in his defence by A-5 K.S. Kropha. In his examination-in-chief he stated that at the time of receiving of applications, the names of the companies, their address, the name of coal blocks applied for, the state where the said coal blocks were situated beside the availability of draft of Rs. 10,000/- with date of issuance of draft were only checked. He also stated that the aforesaid details were also recorded in a register and it was also checked as to whether the applications have been submitted in five sets or not. He also deposed that subsequently the applications were segregated state-wise, end use-wise and administrative Ministry-wise. To a specific leading question put to him in his examination-in-chief by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha (as was permitted by the Court) he specifically stated that CA-I Section had at no point of time checked the completeness and eligibility of the applications so received. Subsequently in his cross-examination as was conducted by Ld. Counsel for A-4 H.C. Gupta, he again stated that it was not CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 253 of 467 checked as to whether the applications so received were accompanied with all the documents as were required to be annexed in terms of the guidelines issued by MOC or not. He however stated that in each of the applications the applicants had stated that all the documents have been enclosed by them with their applications.
295. In this regard reference was however made by Ld. Sr. P.P. Sh. Sanjay Kumar to various communications sent by MOC to different State Governments/ Administrative Ministries and to CMPDIL enclosing therewith copies of various applications concerning them. It was pointed out that in all such communications it was clearly mentioned that the applications alongwith documents (wherever submitted by applicant) may be examined and comments thereon may be furnished to the Ministry by 31.03.2007. [Some such communications which were identically worded and referred to by Ld. Sr. P.P. are Ex. PW 1/G-1; Ex. PW 1/G-2; Ex. PW 1/G-3; Ex. PW 1/G-4 and Ex. PW 1/G-5 [All communications are available in file Ex. P-13 (Colly) (D-17) except that Ex. PW 1/G-5 is part of file Ex. P-14 (Colly) (D-18)] and vide these communications, copy of applications were sent to State Government of West Bengal, CMPDIL, State Government of Bihar, DIPP and Ministry of Steel respectively.] For a ready reference one such letter vide which copy of various applications were sent to State Government of West Bengal Ex. PW 1/G-1 [At page 183 in file Ex. P-13 (Colly) (D-17)] has been reproduced here under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 254 of 467 No. 13016/65/2006-CA-I Government of India Ministry of Coal .......
New Delhi, dated 19th February, 2007.
28th To Chief Secretary, Govt. of West Bengal Kolkata Subject:- Application for allocation of coal blocks in response to advertisement published through newspaper.
Sir, I am directed to forward herewith applications received for allocation of captive coal blocks(s) for meeting the requirement of end-use plants for manufacture of iron/cement/generation of power. A list giving the names of the applicants and the blocks/s sought is enclosed. As per guidelines issued by Ministry of Coal, each applications are required be accompanied with documents:-
i) Application form in the prescribed format. ii) Certificate of registration of the company. iii) Documents showing the person/s who has/have been authorized to sing on behalf of the applicant company. iv) Certified copy of the Memorandum and Articles of Association of the applicant company. v) Audited Annual Accounts/reports of the last 3 years. vi) Project report in respect of the end use plant. vii) Detailed schedule of implementation for the proposed end use
project and the proposed coal mining development projects.
2. Applications alongwith documents mentioned above (wherever submitted by applicant) may be examined and comments thereon may please be furnished to this Ministry by 31.3.2007 Yours faithfully, Sd/-
(V.S. Rana) o/c Under Secretary to the Govt. of India.
Encl: As above - 4 Boxes."
(Emphasis supplied by me)
296. It has been thus argued by Ld. Sr. P.P. Sh. Sanjay Kumar that had the applications been checked for their completeness in MOC before copies thereof were sent to State Governments and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 255 of 467 Administrative Ministries then it would not have been written by PW-1 V.S. Rana in his communication to various State Governments and to Administrative Ministries that the applications alongwith documents mentioned above wherever submitted by applicant company may be examined.
297. Ld. Sr. P.P. also pointed out that in one other case pertaining to 36th Screening Committee itself titled CBI Vs. M/s KSSPL & Ors. which has since been decided by this Court vide judgment dated 19.05.2017, these very accused MOC officers had themselves stated in their deposition u/s 315 Cr.PC that the applications were not checked for their eligibility and completeness in MOC. Though they had also claimed that at the relevant time, it was never brought to their notice that the applications have not been checked for their eligibility and completeness in terms of the guidelines issued by MOC.
298. On the other hand Ld. defence Counsels for accused MOC officers beside relying upon the deposition of PW-1 V.S. Rana also relied upon the deposition of PW-12 N.R. Dash stating that when the comments of Ministry of Steel were sent to MOC qua various applicant companies then in the said communication dated 06.12.07 itself it was stated that 696 complete applications were received from MOC. It was thus submitted that from the over all facts and circumstances of the case and the deposition of the witnesses it is thus clear that the applications were indeed checked for their completeness and eligibility and mistake, if any in checking of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 256 of 467 applications was primarily on account of mistake of CA-I section officials only.
299. Ld. Defence Counsels also referred to certain statements u/s 161 Cr.PC of MOC officials as were recorded by CBI during the course of investigation of other coal block allocation matters that at the time of 34th Screening Committee meeting the applications so received in MOC were checked for their completeness in MOC itself before copies thereof were sent to various stakeholders. It was thus submitted that as the witnesses have stated that the process followed in MOC at the time of 35th and 36th Screening Committee was also stated to be as per the past practice so it must be taken that the applications were indeed checked for their completeness in MOC itself before copies thereof were sent to various stakeholders.
My Discussion
300. Certainly PW-1 V.S. Rana initially stated in his deposition that the applications were checked for their eligibility and completeness but at a later stage of his deposition itself, he qualified the said statement by stating that only the availability of demand draft of Rs. 10,000/- towards processing fee was checked. It is however also true that the words mentioned in the communications such as Ex. PW- 1/G-1, Ex. PW-1/G-2, Ex. PW-1/G-3, Ex. PW-1/G-4 and Ex. PW 1/G-5 vide which copies of applications were sent to various stakeholders, it was stated that the documents, wherever submitted by the applicant company may be checked, does goes to suggest CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 257 of 467 that the applications have not yet been checked for their eligibility and completeness. On the other hand PW-12 N.R. Dash however did state in his communication dated 06.12.07 that 696 complete applications were received from MOC and the same were examined and comments of Ministry of Steel were being accordingly provided to MOC. At the same time DW-7 Prem Raj Kuar however stated that the applications were not checked in MOC for their eligibility and completeness.
301. Thus in view of the aforesaid nature of deposition of various prosecution witnesses coupled with that of DW-7 Prem Raj Kuar, examined on behalf of A-5 K.S. Kropha himself, the only course of action left before this Court is to test the veracity of the claims so made by the various witnesses in the light of documentary evidence available on record.
302. As already discussed and demonstrated while discussing the role of private parties, the applicant company M/s VMPL had not annexed the audited annual accounts/reports of M/s Impex Group of Companies alongwith its application even though the financial strength of Impex Group was mentioned in the application. At the same time it has also been discussed and concluded that alongwith the application no project report in respect of proposed end use plant was annexed by the company M/s VMPL as was required to be annexed in terms of the guidelines issued by MOC. Thus it has been clearly established and concluded in the earlier part of the judgment that the application of A-1 M/s VMPL was incomplete in terms of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 258 of 467 guidelines issued by MOC. Thus as per the guidelines, the application of A-1 M/s VMPL was per-se liable to be rejected in MOC itself being incomplete. However for reasons best known to MOC officers, the application of M/s VMPL was not rejected, if at all any checking of the applications for their completeness was carried out before copies thereof were sent to various stakeholders. It is in these circumstances, the deposition of PW-1 V.S. Rana or of PW-12 N.R. Dash or that of DW-7 Prem Raj Kuar needs to be examined.
303. The foremost question which however arises for consideration is as to whose duty was it to check the applications for their eligibility and completeness. Once again Ld. Counsels for the accused public servants have relied upon the deposition of PW-1 V.S. Rana who stated in his deposition that it was the responsibility of CA-I Section to check the applications for their eligibility and completeness. They have also claimed that CA-I Section officials never brought to their knowledge that the applications have not been checked for their eligibility or completeness.
304. Certainly the accused persons are right that it was the responsibility of CA-I Section to check the applications for their eligibility and completeness but this aspect needs to be viewed from yet another angle also i.e. in the light of provisons of Manual of Office Procedure.
305. As earlier also mentioned all through the entire trial the accused public servants have heavily relied upon the provisions of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 259 of 467 Manual of Office Procedure stating that the same were required to be mandatorily followed. Though I have also already discussed and demonstrated at length in the earlier part of the present judgment that it would have been an ideal situation if the working of MOC in dealing with the applications post their receipt was in accordance with provisions of Manual of Office Procedure but unfortunately it was not so. I have also discussed in detail that PW-1 V.S. Rana was right in saying that in routine day to day functioning, the procedure was not mandatorily followed. I have also demonstrated that even accused MOC officers themselves had not followed the provisions of Manual of Office Procedure not only in their routine day to day functioning but even with regard to important matters such as calling of Screening Committee meeting. The present circumstance regarding checking of applications for their completeness and eligibility is yet another instance where the provisions of Manual of Office Procedure were once again not followed by senior MOC officers.
306. Admittedly the guidelines issued by MOC under the title "Where to apply", clearly specified that the applications should be addressed to Sh. Sanjeev Mittal, Director, CA-I. Thus if the claim of Ld. Counsels for accused MOC officers is presumed to be true that receipt of applications itself and their subsequent processing ought to have been dealt with under the Manual of Office Procedure then since the applications were specifically addressed in the name of Director, CA-I so there ought to be specific orders by him to CA-I Section directing them to carry out processing of the applications in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 260 of 467 accordance with the guidelines. However once again the files of MOC are completely silent in this regard. What has been argued on behalf of accused public servants and as has been admitted by PW-1 V.S. Rana also that since CA-I Section was dealing with coal block allocation matters so the applications were to be processed by them only. However the point being emphasized over here is that neither the guidelines specified as to who shall carry out checking of applications once they are received in MOC nor any order has been subsequently passed in the files of MOC that it shall be the responsibility of CA-I Section, MOC. Thus it is yet another instance where the provisions of Manual of Office Procedure have not been complied with by senior MOC officers themselves.
307. The sum and substance of the aforesaid discussion is that even if it is presumed for the sake of arguments that in terms of the guidelines applications were checked for their eligibility and completeness in MOC before copies thereof were sent to various stakeholders then also the said exercise was not properly carried out. The application of A-1 M/s VMPL was clearly incomplete and ought to have been rejected at the initial stage itself in accordance with the guidelines issued and approved by MOC. These circumstances thus once again show as to how casual and perfunctory was the working of MOC at all levels in the coal block allocation process.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 261 of 467 G (v) Whether senior MOC officers were responsible for ensuring checking of applications for their eligibility and completeness in terms of the guidelines and also whether accused MOC officers were aware of the process undertaken in MOC in processing of applications before they were considered by the Screening Committee.
308. Irrespective of the carelessness and negligence, if any, shown by the officials of CA-I Section in carrying out the checking of applications for their eligibility and completeness, if at all any such exercise was undertaken (Though CA-I Section officials have denied having carried out any such exercise at all) then also can it be claimed by senior MOC officers that they were in no way responsible for ensuring compliance with the guidelines issued by them. Though PW-1 V.S. Rana has claimed that the senior officers of MOC were verbally informed by them that no checking of applications has been carried out qua their eligibility and completeness but the accused MOC officers have categorically denied having received any such oral information/intimation from PW-1 V.S. Rana. The sole ground on which they have rested their aforesaid argument is once again the provisions of Manual of Office Procedure which states that oral communication, if any made should be duly reduced into writing and should be got approved from the concerned officers.
309. However I have already discussed and demonstrated at length that provisions of Manual of Office Procedure were not followed in routine day to day functioning in MOC. Moreover my subsequent discussion will also show that on 11.05.2007 when a CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 262 of 467 meeting of Screening Committee was called in the office chamber of Secretary, Coal then at least on that day, if not before the senior MOC officers acquired knowledge as to what all steps have been taken in MOC till then qua processing of applications. A bare perusal of the minutes of said meeting clearly proves the said fact beyond any reasonable doubt.
310. As earlier also discussed, a meeting of the Screening Committee though comprising of representatives of Administrative Ministries and that of CIL/CMPDIL officers only took place in the office chamber of Secretary Coal i.e. A-4 H.C. Gupta on 11.05.2007. [The representatives of State Governments were admittedly not invited to the said meeting.] However before I advert on to discuss the contents of the minutes of said meeting, it will be worthwhile to reproduce the said minutes alognwith attendance sheet of the officers who attended the said meeting.
The minutes Ex. PW 1/N-3 (Colly) (D-18) of Screening Committee meeting held on 11.05.2007, read as under:-
"Minutes of Meeting held under the chairmanship of Secretary (Coal) with the representatives of Nodal Ministries represented in the Screening Committee, representatives of CIL, Coal Controller's Organisation and CMPDIL.
A meeting was convened on 11th May 2007 at 10:30 AM in the office chamber of Secretary (Coal) with the representatives of Nodal Administrative Ministries represented in the Screening Committee, representatives of CIL, Coal Controller's Organization and CMPDIL to discuss the modalities for scrutiny and evaluation of applications received for allocation of 38 coal CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 263 of 467 blocks for captive use. List of participants is attached as Annexure.
Opening the discussion, Secretary (coal) gave brief account of the process followed, the guidelines notified for allocation of captive coal blocks in this round, details of applications received, and action taken so far on the applications. He pointed out that as against 740 applications received during the last round of allocation of captive blocks, the number of applications received for 38 blocks this time is 1,422, which is almost double the applications received on the last occasion. The representative of CMPDIL informed that in terms of applicant companies, the number would be around 344. Going by the past experience, the exercise is anticipated to be far more cumbersome in case personal audience is given to each applicant. Also, in order to determine the most eligible applicant, it needs to be considered whether a set of more specific bench mark criteria, in conformity with the broad parameters indicated in the guidelines, could be evolved against which the eligibility of applicants could be measured based on information furnished in the application forms. He also sought the views of the members on whether based on such criteria, non serious applicants could be filtered in the first round of scrutiny, leaving only the more serious contenders who only could be called for personal hearing. This would ensure more objective and critical evaluation of the competing applicants. The conventional way of calling each applicant would be extremely time consuming and it may take a long time for the Screening Committee to complete the exercise and make its recommendation.
The Advisor, Ministry of Power stated that they had already suggested broad guidelines for evaluation of applications based on which scrutiny can be made. Secretary(coal) observed that it would not serve the purpose as the parameters suggested are of very general nature and not very specific, against which the applicants could be evaluated.
The Joint Secretary, Department of Industrial Policy and Promotion, Ministry of Steel suggested that parameters such as minimum capacity of end use plant, minimum net-worth, preparedness of the project etc. could be considered as criteria for initial scrutiny and short-listing. The Director, Ministry of Steel also endorsed this suggestion.
Some of the members expressed concern that the action of the Screening Committee in eliminating some applicants based on net-worth criteria alone may be challenged in Courts on the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 264 of 467 ground that it could be only one of the factors and not the sole factor to be taken into account while determining the eligibility of the applicants. Such elimination may, therefore, be challenged on the ground of equality of opportunity. After detailed deliberations, it was agreed that the respective Administrative Ministries would examine this issue further and suggest some criteria based on specific parameters to determine the inter-se priority amongst the applicants from the respective sectors i.e. power, iron & steel and cement. This may be furnished to the Ministry of Coal on priority. Thereafter, if necessary, another meeting would be convened to discuss the matter further. In the meantime, CMPDIL will carry out an exercise to identify the applicant companies that have minimum net-worth of 20% of the investment required for projected capacities of end use plants."
"List of participants in the Screening Committee meeting held on 11th May 2007 at 10:30 AM in the office Chamber of Secretary (Coal).
Ministry of Coal
(i) Sh. H.C. Gupta, Secretary
(ii) Sh.K.S. Kropha, Joint Secretary, Ministry of Coal.
(iii) Sh. P.R. Mandal, Advisor (P).
(iv) Sh.K.C. Samria, Deputy Secretary, Ministry of Coal.
Ministry of Steel
(i) Sh. N.R. Dash, Director Coal India Limited
(i) Sh. N.C. Jha, Director (Tech.).
Coal Controller Organization
(i) Sh. An. Saha, Coal Controller.
(ii) Sh. A.Panda, Director.
Coal Mine Planning and Design Institute.
(i) Sh.S.Chaudhuri,
(ii) Sh. A.K. Wahi, GM, ES, CMPDIL."
(Emphasis supplied by me)
311. However in the same file at page number 105-106, the draft minutes Ex. PW1/N-2 of the said meeting are also available in which CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 265 of 467 certain corrections were admittedly made in his own hand by A-5 K.S. Kropha.
312. A bare perusal of the final approved minutes Ex. PW-1/N-3 (colly) (D-18) of the meeting held on 11.05.2007 shows that Secretary Coal, i.e. A-4 H.C. Gupta while opening the discussion in the meeting not only gave brief account of the process followed and the guidelines notified for allocation of captive coal blocks in this round, but also stated about details of applications received, and action taken so far on the applications. He also pointed out that as against 740 applications received during the last round of allocation of captive blocks the number of applications received for 38 blocks, this time was 1422 i.e. double the number of applications received on the last occasion. The minutes however further talks of the discussion held amongst the members about the procedure or modalities to be adopted so as to determine the most eligible applicant. The issue of laying down specific benchmark criteria in conformity with the broad parameters indicated in the guidelines was also discussed. The need to have an objective and critical evaluation of the competing applicants was also stressed upon. The meeting however finally concluded with the decision that the respective Administrative Ministries would examine and suggest some criteria based on specific parameters to determine the inter-se priority of various applicant companies. At the end of the minutes it is also mentioned that in the meantime, CMPDIL will carry out an exercise to identify the applicant companies that have minimum net-worth of 20% of the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 266 of 467 investment required for projected capacities of end use plants. It is also clear from the minutes that the sole thrust of the entire discussion in the meeting was to put in place a transparent and objective mechanism qua allocation of captive coal blocks. In fact during the course of present trial also it has been the consistent stand of accused MOC officers that all through the entire process in MOC they have been insisting for putting in place a transparent and objective mechanism. However as my subsequent discussion will show that in fact no heed was paid either to transparency or to objectivity in the entire coal block allocation process by the accused MOC officers and especially while choosing to recommend M/s VMPL for allocation of a captive coal block.
313. However the purpose of reproducing and referring to the minutes of meeting held on 11.05.2007 Ex. PW 1/N-3 (colly) at this stage is only to show the falsity in the claim made by the accused MOC officers that at no point of time the facts regarding total number of applications received in MOC or the manner of their processing or the details of the applications or the action taken so far on the applications were brought to their knowledge by CA-I, Section officers/officials. In fact in the note sheet pages of the files of MOC I have been unable to find any noting where the total number of applications so received or the manner in which they were processed or any other details of the applications were specifically mentioned. It is only the minutes Ex. PW 1/N-3 (Colly) of the meeting held on 11.05.2007 which for the first time speaks about it. The minutes also CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 267 of 467 says that Secretary Coal also gave a brief account of details of applications received. The onus thus remained on accused MOC officers only to show as to how and in what manner the information regarding total number of applications received or details thereof came to their knowledge and which were shared by them with the other members of the Screening Committee present in the said meeting. Clearly as per the attendance sheet of the officers who attended the said meeting, all the three accused public servants i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were present from MOC beside Sh. P.R. Mandal, Advisor (P) in the said meeting. The role of Sh. P.R. Mandal, Advisor (P) in the entire coal block allocation process has been however neither asserted to by the prosecution nor the accused persons have ascribed any role or any knowledge of the process to him. Moreover the presence of PW-1 V.S. Rana or any other officer of CA-I Section in the meeting can not be presumed as the attendance sheet is silent in this regard. Had it been so the attendance of such other officers of MOC would have been there in the attendance sheet in the same manner in which it was there in the attendance sheets of various meetings of 36th Screening Committee even though A-6 K.C. Samria and PW-1 V.S. Rana were admittedly not members thereof. Even otherwise, if the presence of said officers/officials of CA-I, Section is presumed in the said meeting then also the only irresistible conclusion which arises from the overall facts and circumstances is that the senior officers of MOC were informed at least on the day of meeting held on 11.05.2007, if not before by the officers/officials of CA-I, Section CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 268 of 467 about the total number of applications received and action taken so far on the applications or other details of the applications. Thus the three accused MOC officers can not claim that they were not aware of the details of the applications received or total number of applications received or the action taken on the applications so far, at least as on 11.05.2007 if not on any date prior thereto.
314. On the other hand the three accused MOC officers have rather claimed that the meeting held on 11.05.2007 went as per the agenda of the meeting, copy of which has been found in the files of Ministry of Steel. In the cross-examination of PW-1 V.S. Rana, the copy of one such agenda note Ex. PW 1/DX-7 was put to him by Ld. Counsel for accused MOC officers. However as already mentioned and discussed at length that no such agenda note was found in the files of MOC and even the office memorandum dated 07.05.2007 Ex. PW 1/N-1 (D-18) whereby various members of Screening Committee were invited to attend the meeting of Screening Committee on 11.05.2007, was also completely silent that any such agenda note is either being enclosed with the notice or will be subsequently sent. In fact there is no mention at all of any agenda note in the said office memorandum. Similarly it was also found that even in the Ministry of Steel files there was no noting or communication from MOC which could show that any agenda note has been received from MOC with respect to meeting held on 11.05.2007.
315. Thus, in the absence of written record regarding preparation of any such agenda note for the meeting held on 11.05.2007 and its CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 269 of 467 non-availability in the files of MOC and the office memorandum dated 07.05.07 vide which members were invited for the meeting being completely silent about any such agenda note being enclosed or to be sent separately so no presumption can be raised as to the preparation or availability of any such agenda note. In fact no question at all was asked from PW-12 N.R. Dash in his cross- examination on behalf of accused MOC officers regarding the circumstances in which such an agenda note came to be available in the files of Ministry of Steel.
316. In this regard, I may however also mention that even if it is presumed that such an agenda note was prepared in MOC for the Screening Committee meeting to be held on 11.05.2007 then there is also no noting in the files of MOC which could show as to who initiated the process of preparation of said agenda note. PW-1 V.S. Rana has claimed complete ignorance in this regard when he was extensively cross-examined by Ld. Defence Counsel regarding the preparation of any such agenda note. It is also not evident from the files of MOC as to on whose instructions the said agenda note was prepared or who approved the final agenda note in MOC. As already mentioned the meeting dated 11.05.2007 of the Screening Committee was not proposed by CA-I Section and the note dated 07.05.07 in this regard was put up by CA-I Section on the telephonic instructions of A-6 K.C. Samria, Director, CA-I only. Thus it can not be presumed by any stretch of imagination that CA-I Section on its own could have prepared any such agenda note. Moreover even if such CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 270 of 467 an agenda note is presumed to have been prepared by CA-I Section officials then also the purpose of calling the said meeting must have been told to them by the accused MOC officers only. The senior officers of MOC must have told officials of CA-I Section as to what all matters are to be incorporated in the agenda note. Thus these circumstances further show that accused MOC officers did undertake deliberations with CA-I Section officials regarding the process undertaken till then or is to be undertaken further with respect to the applications so received in MOC. This aspect also shows that even though there is no written note in the files of MOC as to how many applications in all were received but the said fact was verbally brought to the knowledge of accused MOC officers by CA-I Section officials. PW-1 V.S. Rana, Under Secretary, CA-1 Section has however categorically stated in his cross-examination that course of action to be undertaken pursuant to receipt of applications was decided in a meeting held in the office of Joint Secretary, Coal. He stated that all further actions were thus taken in accordance with the directions given in the said meeting. Though Ld. Defence counsels denied that any such meeting ever took place primarily on the ground that neither any noting nor any minutes of any such meeting exists on record but PW-1 V.S. Rana reiterated his earlier stand that no record is usually kept or prepared of such internal meetings. I have also no reason to doubt the aforesaid claim of PW-1 V.S. Rana especially in view of the nature of functioning of MOC as has been discussed and demonstrated at length in the earlier part of the judgment. Not only it is difficult to presume that the entire matter relating to receiving of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 271 of 467 applications and their subsequent processing in MOC was being dealt exclusively at the level of CA-I Section or by PW-1 V.S Rana, Under Secretary, CA-I Section only or that neither Secretary, Coal, nor Joint Secretary, Coal or even Director CA-I in whose name the applications were received were not aware of the steps being taken in MOC in this regard. On the other hand if that was the situation than it is all the more strange that none of the three senior MOC officers took care to even ascertain as to what all steps are being taken by CA-I Section in this regard.
317. My aforesaid conclusion further gets fortified from the noting dated 20/12/06 at note sheet page 6 in MOC file Ex. P-13 (Colly) (D-
17) which read as under:
"As instructed, we may send request to office of Coal Controller for deputing at least four officials for collecting information. This is in accordance with decision taken by Competent authority during the finalisation of course of action for receiving application.
US (CA) Sd/- R.N.Singh 20/12/06 Sd/- V.S. Rana SO (CA-I) 20/12/2006" (Emphasis supplied by me)
318. PW-1 V.S. Rana was in fact extensively cross-examined on behalf of accused public servants including as regard aforesaid CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 272 of 467 noting dated 20.12.2006. He however stated that the word "competent authority" referred to in the note dated 20.12.2006 referred to Joint Secretary, Coal. He also stated that though as per Manual of office Procedure the note dated 20.12.2006 should have travelled to the desk of concerned officer who gave the instructions but he reiterated that in routine day to day functioning provisions of Manual of Office Procedure were not mandatorily followed. He also stated that note dated 20.12.2006 did not travel upward from his desk as there were directions for urgent action. I have also no reason to doubt the correctness of the said noting being of the contemporary period and recorded in the routine course of discharge of official duties by officials of CA-I Section.
319. In fact there is one more communication available in file Ex. P-37 (Colly) (D-44) of CMPDIL dated 11.04.2007 addressed to Sh. A.K. Wahi, General Manager, CMPDIL and sent by Sh. R.N. Singh, Section Officer, CA-I Section, MOC wherein there is again reference to discussions held in the chamber of Sh. K.S. Kropha, Joint Secretary (Coal). The contents of the letter shows that the discussion being referred to was with respect to processing of applications only or the course of action to be adopted.
The said letter dated 11.04.2007 (available at page 5 of D-44) read as under:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 273 of 467 "No. 13016/65/2006-CA-I Government of India Ministry of Coal ......
New Delhi, the 11th April, 2007 To Shri A.K. Wahi, General Manager (ES), C.M.P.D.I.L., Gondwana Place, Kanke Road - 834008.
Sir, As per the discussion held in the Chamber of Shri K.S. Kropha, Jt. Secretary (Coal), I am sending application forms (block-wise) and CDs received from the applicants who have applied for allocation of coal blocks in power sector for preparation of the data base. The application forms in respect of steel and other (block-wise) alongwith CDs will be sent soon.
Yours faithfully, Sd/-
(R.N. Singh) Section Officer"
320. Thus from the aforesaid circumstances it is clear that discussion did take place in MOC involving senior officers so as to decide the course of action qua the applications being received in MOC or their subsequent processing.
321. It has been however argued that A-6 K.C. Samria was assigned the charge of CA-I Section in March 2007 only and the applications were already sent to various stakeholders in the month CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 274 of 467 of February 2007 itself i.e. during the tenure of the then Director CA- 1, Sh. Sanjeev Mittal and thus A-6 K.C. Samria, can not be held liable for the same.
I find myself in complete agreement with the said submission and certainly no liability is being fixed upon A-6 K.C. Samria for the period during which he was not holding the charge of CA-I Section.
322. Be that as it may, I now proceed further with the assumption that it was the responsibility of CA-I Section to carry out the checking of applications qua their eligibility and completeness. A question however needs to be kept in mind that as the applications were received in the name of Director, CA-I, so even though he may not be expected to carry out checking of applications himself qua their eligibility and completeness but can he disown his responsibility of even ensuring compliance with the guidelines by CA-I Section. In my considered opinion, the answer to the same is a big "NO".
Moreover we have a situation where A-6 K.C. Samria despite being Deputy Secretary/Director CA-I Section (at least from the month of March 2007 onwards) has completely washed off his hands from the entire process by simply stating that as the applications were already dispatched to various stakeholders in February 2007 itself and he took over the charge of CA-I Section in March 2007 so he was not in any manner responsible for the checking of applications in MOC for their eligibility and completeness.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 275 of 467
323. This certainly can not be the situation. In fact the files of MOC shows that applications to Ministry of Power were subsequently sent i.e. during the period when A-6 K.C. Samria was holding the charge of CA-I Section. The record also shows that A-6 K.C. Samria was also regularly involved even otherwise with CA-I Section in making requests to the office of Coal Controller or to CIL to depute certain officials with respect to coal block allocation process. In the cross- examination of PW-1 V.S. Rana as was carried out on behalf of A-4 H.C. Gupta some such letters were put to him by Ld. Defence Counsel. A letter dated 02.08.2007 Ex. PW 1/DX-12 was thus found to have been issued under the signatures of A-6 K.C. Samria to CIL requesting for deputing two financial experts for scrutinizing financial details of applicant companies. Yet another letter dated 02.08.2007 Ex. PW 1/DX-13 was sent to Coal Controller by A-6 K.C. Samria under his own signatures requesting for making available services of four officials for scrutinizing applications. PW-1 V.S. Rana in his cross-examination further stated that yet one other letter dated 31.05.2007 Ex. PW 1/DX-9 was though sent by him under his own signatures to the Coal Controller requesting to depute three officials with respect to Screening Committee meeting proposed to be held in the third week of June 2007 but pointed out that the said letter was sent by him pursuant to the telephonic discussions which A-6 K.C. Samria had with the office of Coal Controller and the said discussion was duly referred to by him in his said communication itself.
324. PW-1 V. S. Rana also deposed that when in the month of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 276 of 467 January/February 2007 certain officials of the office of Coal Controller had come to MOC to assist in the process then before their initial stay of 10 days was about to expire, A-5 K.S. Kropha, Joint Secretary, Coal had visited them at Scope Minar, Laxmi Nagar where they were carrying out segregation work i.e. segregating the applications state- wise, end-use-wise, Administrative Ministry-wise etc and he told them to extend their stay in Delhi as the work assigned to them was not yet completed. In fact PW-7 Manas Kumar De, Assistant of the office of Coal Controller, Kolkata who was amongst the four officials carrying out the segregation work also deposed so and thereby corroborated the deposition of PW-1 V.S. Rana in this regard. In fact PW-7 Manas Kumar De also referred to an application dated 08.02.2007 Ex. PW 7/A [available at page 113 in file Ex. P-14 (Colly) (D-18)] singed by him and his three colleagues making request for grant of honorarium for the strenuous work carried out by them. In the said application also it was stated by them that they had to return to Calcutta on 01.02.2007, but as the work had not been completed, so Sh. K.S. Kropha, Joint Secretary, MOC directed them to stay until the work is finished.
325. The aforesaid facts and various communications of the contemporary period referred to above clearly indicate that both A-5 K.S. Kropha and A-6 K.C. Samria were regularly involved in the processing of applications in MOC alongwith CA-I Section officials. As mentioned A-6 K.C. Samria had himself written a letter dated 02.08.2007 Ex. PW 1/DX-13 to Coal Controller seeking services of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 277 of 467 four officials for scrutinizing applications for coal blocks earmarked for allocation through the Screening Committee. Thus if A-6 K.C. Samria claims he was not aware of the process undertaken by CA-I Section as regard processing of applications than what nature of scrutiny of applications was proposed to be got carried out from the officials of the office of Coal Controller. Admittedly one set of all applications was still available in MOC even though other four sets were already dispatched to various stakeholders. Thus as A-6 K.C. Samria has not put-forth any explanation with respect to the said letter(s) even for the purposes of pre-ponderance of probability so there is no reason as to why this Court should ascribe any other meaning to the words "Scrutiny of applications" except that the applications were to be scrutinized in terms of the guidelines only. Moreover, if it is argued that the guidelines did not state anything regarding scrutiny of applications and that it only speaks of checking of applications or that the words "scrutiny" and "checking" have different meanings with respect to applications received in MOC than again it was for A-6 K.C. Samria only to explain as to what was the meaning of the word "Scrutiny" as was mentioned by him in his communication Ex. PW 1/DX-13. Thus in the absence of no explanation coming forth in this regard, this Court has no reason to assign any other meaning to the use of said word other than what has been stated above.
326. Similarly the communication dated 08.02.2007 Ex. PW 7/A written by the officials of the office of Coal Controller also clearly shows that A-5 K.S. Kropha was indeed aware of the work being CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 278 of 467 carried out by the said officials. There is no reason to doubt the deposition of either PW-7 Manas Kumar De or that of PW-1 V.S. Rana that A-5 K.S. Kropha had met the said officials during their stay in Delhi. Even though in the cross-examination of PW-7 Manas Kumar De, it was suggested to him by Ld. Counsel for A-5 K.S. Kropha that he never met them during their stay in Delhi but the witness stated the said suggestion to be wrong. However the correctness or genuineness of communication dated 08.02.2007 Ex. PW 7/A written by the said witness alongwith his three other colleagues was neither disputed nor it was even suggested to be a false document. In these circumstances, I have thus no reason to doubt the deposition of PW-7 Manas Kumar De or that of PW-1 V.S. Rana in this regard. PW-7 Manas Kumar De also stated that no one ever asked them to scrutinize the applications for checking their eligibility and completeness.
327. In the aforesaid circumstances it thus can not be even presumed for the sake of arguments that A-5 K.S. Kropha despite having met the said officials and asking them to complete the work assigned to them before leaving Delhi was not aware as to what nature of work they were carrying out. It is also thus a natural corollary that A-5 K.S. Kropha was also aware of the process undertaken by CA-I Section towards processing of applications before they were sent to various stakeholders. I have also already observed that there is no reason to doubt the claim of PW-1 V.S. Rana that course of action to be adopted qua the applications CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 279 of 467 received in MOC was decided in a meeting held in the office chamber of A-5 K.S. Kropha, Joint Secretary (Coal). The other communication referred earlier also corroborated the factum of discussion having taken place in the office chamber of A-5 K.S. Kropha in this regard. The knowledge on the part of A-6 K.C. Samria about the process undertaken by CA-I Section has also been well established.
328. Moreover the whole intention of providing for checking of applications for their eligibility and completeness in the guidelines was only to ensure that undeserving applicant companies should be weeded out at the initial stage itself. Moreover if for any reason, the said exercise could not be undertaken before the various sets of applications were sent to various stakeholders then also there was no bar that the applications could not be checked subsequently for their eligibility and completeness. As shall be discussed at a later stage also the Screening Committee in order to achieve the objective of ensuring transparency and objectivity in the coal block allocation process also introduced the concept of presentations to be made by the applicant companies before the Screening Committee even though the guidelines were silent as regard the concept of any such representation to be made before the Screening Committee. Thus as is evident from the overall facts and circumstances of the case that A- 6 K.C. Samria was well aware of the process undertaken in MOC qua the applications received so the said exercise of checking of applications could have been very well undertaken even at a subsequent stage, since one copy of all applications was still CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 280 of 467 available with MOC.
329. At this stage, I may also mention that in view of the aforesaid extensive discussion of the overall facts and circumstances of the case nothing much hinges on the words "696 complete applications were received by this Ministry" as were mentioned by PW-12 N.R. Dash in the office memorandum of Ministry of Steel dated 06.12.2007 Ex. PW 1/H-5 (Colly) (D-13). As the application of A-1 M/s VMPL was clearly incomplete so there was no reason as to how the said application could have been found to be complete by Ministry of Steel. In fact at a later stage of the present judgment, I shall be also discussing that even the TEFR available with Ministry of Steel and on the basis of which it had sent its recommendations/views to Ministry of Coal vide office memorandum dated 06.12.07 Ex. PW 1/H-5 (Colly) did not actually pertain to the same end use project to which the application in question pertained to. Moreover in the examination of PW-12 N.R. Dash, no question was asked in this regard by either the prosecution or the defence and thus when the application of A-1 M/s VMPL has been found to be incomplete, so no purpose will be served by assigning any explanation or reason to the use of said words by him in the office memorandum Ex. PW 1/H-5 (Colly). The said fact is actually not in conformity with the actual status of the application of A- 1 M/s VMPL and thus is a wrong statement of fact and cannot be given much credence. In fact my subsequent discussion would also show that even the working in Ministry of Steel with respect to coal block allocation process was also not completely above board.
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330. However in the absence of there being a proper investigation it will be a matter of pure inferences only as to whether the working of these Ministries involved in allocation of captive coal blocks was so adhoc and arbitrary in almost all matters or it was only qua coal block allocation matters only as influential and rich/resourceful persons were involved. I however do not wish to enter into the said realm of imagination as there is no evidence available on record to support the aforesaid inference.
331. From my aforesaid discussion, it is thus clear that the accused MOC officers not only had all the knowledge of the process being undertaken in MOC by the time 36 th Screening Committee meetings were held but they deliberately or for reasons best known to them chose to either ignore such violation of guidelines or deliberately kept silence.
332. At this stage, I may also mention that none of the aforesaid conclusions are based on any inference or conjectures or surmises but are the only natural corollary emerging from the records of the case when examined in the light of arguments put-forth by Ld. defence counsels. The aforesaid circumstances also clearly demonstrate that provisions of Manual of Office Procedure were not followed even in important matters of MOC much less in routine day to day functioning. It thus does not lie in the mouth of accused MOC officers to claim that the entire working of MOC at least with respect to coal block allocation matters took place in accordance with the provisions of Manual of Office Procedure or that the oral deposition of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 282 of 467 PW-1 V.S. Rana or that of DW-7 Prem Raj Kuar qua which no written record exists, be not considered at all. On the other hand, the accused MOC officers are themselves repeatedly calling upon this Court to believe their oral claims to be true and correct qua different aspects even though they are not supported by any written record of the relevant time which in fact ought to be there if provisions of Manual of Office Procedure were mandatorily followed. Certainly the accused MOC officers cannot blow both hot and cold.
333. In fact as has been earlier demonstrated by this Court and as will be further discussed in the subsequent part of the judgment also, the entire working of MOC has been perfunctory and the rules have been observed more in breach.
G (vi) Whether there was any violation of guidelines in the Screening Committee meeting.
334. The minutes of the meeting held on 11.05.2007 also refers to the requirement of arriving at the interse priority amongst the competing applicant companies for any given coal block but strangely enough these guidelines were also not followed when M/s VMPL was subsequently recommended for allocation of a captive coal block. The minutes of meeting held on 11.05.2007 or that of subsequent meetings of Screening Committee or the files of MOC does not show that accused MOC officers despite being aware of the need for having such a transparency and objectivity in the coal block allocation process put in place such a mechanism or took any steps which could facilitate the Screening Committee in arriving at such a decision CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 283 of 467 objectively and with complete transparency. The accused MOC officers being officers of nodal Ministry can not say that it was for the Screening Committee to decide the mechanism or the procedure to be followed, since being the Chairman and Member Convener of the Screening Committee respectively, it was the bounden duty of A-4 H.C. Gupta and A-5 K.S. Kropha to ensure due compliance with the guidelines earlier approved and issued by them for governing allocation of captive coal blocks. It is not the case of anyone that while framing any such guidelines the MOC undertook some consultative process either with the State Governments or with the Administrative Ministries. It may be true that on every occasion whenever the guidelines were framed and approved in MOC then they might have been guided by the procedure adopted by the earlier Screening Committees but the fact remains that on none of the occasions before finalizing the guidelines, the Administrative Ministries or State Governments were ever consulted in any manner.
335. In these circumstances, if once again the composition and purpose of constituting Screening Committee is referred to, then it is clear that while allocation of captive coal blocks in the country was the subject matter of MOC but since it impacted the work of other Ministries and State Governments so in order to expedite the process and to obtain the views of all concern at one place, the Screening Committee was constituted by MOC, Government of India.
336. Thus as is evident from the deposition of PW-12 N.R. Dash, PW-14 Shashi Ranjan Kumar, DW-5 Bhaskar Khulbe and DW-6 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 284 of 467 Shivraj Singh, they had simply put-forward the views, comments/recommendations of their respective organisations and which recommendations were in fact already communicated to MOC before the Screening Committee meeting took place. Thus even if it is presumed for the sake of arguments that after putting before the Screening Committee their views/comments, the various members of Screening Committee did participate in the discussion so that the final decision of the Screening Committee may be arrived at but still the responsibility to ensure due compliance with the guidelines issued by MOC rests solely with A-4 H.C. Gupta, who not only was Secretary, Coal but was also Chairman, Screening Committee and with A-5 K.S. Kropha who was Joint Secretary Coal, and was also the Member Convener, Screening Committee.
337. Though both the aforesaid officers have now claimed that all the guidelines including interse priority guidelines were duly complied with before the final recommendations of the Screening Committee were arrived at but I shall be demonstrating at a slightly later stage of the present judgment that no heed at all was paid to any of the guidelines much less the guidelines specifying the procedure for arriving at the interse priority amongst the competing applicant companies for any given coal block.
338. The minutes Ex. PW 1/L (Colly) of 36 th Screening Committee are not only completely silent in this regard but are so cryptic that nothing is ascertainable as to what procedure was followed to ascertain the interse priority amongst the competing applicants for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 285 of 467 any given coal block as to on what basis any given applicant company was selected or other companies were not selected. This is thus yet another aspect qua which accused persons are calling upon this Court to believe their oral submissions even in the absence of any written record and more importantly when written record ought to have been prepared by them showing the basis of their decision or the procedure followed by them while dealing with such an important nationalised natural resource having immense monetary value and importance for the industrial development of the country. The accused MOC officers can not say that they were not supposed to record the procedure or reasons as to why from out of the various applicant companies some companies only have been selected. The absence of reasons in this regard and especially in view of the overall facts and circumstances of the present case as discussed above clearly speak volumes not only about the arbitrary functioning of MOC officers but also about their brazenness in doing so, caring the least for the rule of law. The bald argument that the decision taken by them can not be questioned in the present proceedings or can not be subjected to judicial review in the present proceedings, again I may say is a brazen argument.
339. In order to ascertain the existence of element of culpability or mensrea or guilty intention in the acts of omissions and commission of accused public servants, all such aspects are required to be taken into consideration. As shall be further discussed, all the witnesses examined either by the prosecution or by the defence have stated CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 286 of 467 that no interse priority chart or interese merit chart was provided to them in the Screening Committee meeting held on 03.07.2008. On the other hand accused MOC officers have claimed that as there was no requirement to prepare any such interse priority chart or interse merit chart in the guidelines so no fault can be found on their part on this ground.
I may however state that in fact there was no requirement of mentioning in the guidelines that any interse merit chart or interse priority chart shall be prepared, for the same would have been the part of process which was required to be adopted in achieving the goals mentioned in the guidelines. The guidelines admittedly contained the goals which were required to be achieved and not the means thereof. Even otherwise if the argument put-forth by Ld. Counsels for the accused persons is considered then also when the said guidelines in question were prepared and approved by accused MOC officers themselves then keeping in view their vast experience on the administrative side and being senior officers of Indian Administrative Service, it was expected of them to also provide in the guidelines as to how the said goals will be achieved or what shall be the process or procedure to be followed. On the other hand they should have thought of some procedure vide which the guidelines so framed by them would have been implemented. Thus once again accused MOC officers can not try to eke out any benefit from their own follies.
340. In fact from the proceedings of Screening Committee and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 287 of 467 which shall be discussed at length at a slightly later stage of the judgment it is apparent that the most important part of the guidelines which were required to be complied with by the Screening Committee i.e. to ascertain the interse priority from amongst the competing applicant companies was not at all followed or complied with.
341. The aforesaid discussion thus brings us to the next issue as to how the decision of recommending A-1 M/s VMPL for allocation of a coal block was arrived at in the Screening Committee meeting held on 03.07.08. The claim of accused MOC officers that all the decisions of the Screening Committee and especially as regard A-1 M/s VMPL as were taken in the Screening Committee meeting held on 03.07.2008 were unanimous will also be required to be examined.
G (vii) Whether the recommendations made by 36 th Screening Committee meeting were unanimous.
342. It has been the constant and consistent stand of accused public servants that during the Screening Committee meeting held on 03.07.2008 detailed discussion were held qua the claim of each of the applicant company when the issue of allocation of various coal blocks were individually taken up. It was also submitted that since the recommendations of Screening Committee were unanimous in nature so in accordance with the letter and spirit of Para 54 (4) (c) of Manual of Office Procedure the essence of outcome of the deliberations was only recorded. As regard non-mentioning of reasons for choosing one or the other company from amongst many applicant companies for any given coal block in the minutes of the meeting, it was submitted CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 288 of 467 that had any such detailed discussion was to be mentioned then the minutes would have run into hundreds of pages. While referring to the deposition of various prosecution witnesses as well as that of DW-5 Bhaskar Khulbe and DW-6 Shivraj Singh, it was submitted that admittedly during the course of Screening Committee meeting all the members were free to air their views and there was no restriction on anyone to give any contrary or conflicting view/opinion. It was also submitted that at the conclusion of the meeting held on 03.07.2008 recommendation sheets containing final decision of the Screening Committee were prepared and all the members so present duly signed the said recommendation sheets without recording any objection or dissenting views. It was also submitted that even subsequent to the Screening Committee meeting held on 03.07.2008, no objections were received from either Administrative Ministries or from the State Governments concerned or from any other member of Screening Committee regarding the final recommendations so arrived at by the Screening Committee. It was also submitted that in the minutes itself, it is clearly mentioned in para 14 that 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 project, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc. The recommendation of the Screening Committee were thus stated to be unanimous.
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343. On the other hand Ld. Sr. P.P. Sh. Sanjay Kumar while referring to the deposition of DW-5 Bhaskar Khulbe and DW-6 Shiv Raj Singh submitted that the defence witnesses themselves stated that all the recommendations were not unanimous. He also pointed out that the meeting as per the minutes thereof started at 3 PM and as stated by defence witnesses lasted for about 1 ½ hour only. It was thus submitted that in such a short span of time when admittedly various members of the Committee including A-4 H.C. Gupta, the Chairman of the Committee made some general remarks then it was not only highly improbable but also impossible for the Screening Committee to have a discussion about 674 applications of 184 applicant companies with respect to 23 coal blocks under consideration and that too qua all the factors as are mentioned in para 14 of the minutes. It was also submitted by Ld. Sr. P.P. that as the minutes of the meeting were admittedly prepared later on in MOC and were also not sent for confirmation to members of Screening Committee before they were put up for approval before the Prime Minister as Minister of Coal so there was no occasion for anyone to point out any discrepancy in the minutes or to raise any objection. The recommendations made by the Screening Committee were thus stated to be not unanimous.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 290 of 467 My Discussion
344. In order to appreciate the aforesaid issue, it will be worthwhile to once again revisit and understand the constitution and composition of Screening Committee and its working. The composition of Screening Committee when examined in relation to its mandate and actual working will help in understanding as to how the working of Screening Committee was supposed to have taken place. It will also help in appreciating the contentions of Ld. Counsels for accused public servants as regard the process followed in the 36 th Screening Committee meeting for arriving at its recommendations.
(a) Constitution of Screening Committee.
345. As earlier also mentioned, the Screening Committee was constituted with a view to expedite the captive coal block allocation process. While MOC was the Nodal Ministry for allocation of coal blocks but the views of Administrative Ministries such as Ministry of Power, Ministry of Steel, DIPP were important as the coal blocks were proposed to be allocated to those companies who were engaged in either generation of power or production of iron and steel or cement. Thus as the end use projects pertained to the jurisdiction of said other Administrative Ministries so their views were certainly important in considering the issue of allocation of various coal blocks to different applicant companies engaged in production of one or the other end use products. Similarly the views of State Governments CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 291 of 467 where the coal blocks proposed to be allocated, were situated or that of the state Governments where the end use plant was established or was proposed to be established were also equally important. The views of CMPDIL or CIL or its other subsidiary companies were also important from the point of view of obtaining technical details of the coal blocks proposed to be allocated or the progress made by any applicant company qua any coal block, if previously allocated to it.
346. However before proceeding further it will be also appropriate to discuss briefly as to how the business of Government of India is carried out.
The business of the Government of India is disposed of at various levels within the Ministries/Departments in terms of the Government of India (Allocation of Business) Rules, 1961 [herein- after referred to as "AoB Rules, 1961"] by, or under the general or special directions of the Minister-in-charge. However, the government of India (Transaction of Business) Rules, 1961, [herein-after referred to as "ToB Rules, 1961"], stipulate that such disposal of business is subject to the provisions relating to consultation with other Ministries/Departments, approval of the Prime Minister, the Cabinet and its Committees and the President. Accordingly, while a significant portion of the Government business gets disposed of at the departmental level, certain cases, or class of cases that are important from the national perspective, require approval of the Cabinet or one of the Committees of the Cabinet.
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347. Both AoB Rules, 1961 and ToB Rules, 1961 have been framed under Article 77 (3) of the Constitution of India. The first schedule to the AoB Rules, 1961 specifies the Ministries, Departments, Officers and Secretariats while the second schedule lists out the business allocated to different Ministries/Departments of the Government of India. The cases that require approval of the Cabinet, are indicated in the second schedule, and those requiring approval of the Committees of the Cabinet are indicated in the first schedule to the ToB Rules, 1961.
One such illustrative case which is required to be placed before the Cabinet is "Cases in which a difference of opinion arises between two or more Ministries and a Cabinet decision is desired".
348. Thus if any action even though it may concern any given Department or Ministry in terms of AoB Rules, 1961 but if it also impacts the business of other departments or Ministries or even that of any State Government than before any such matter is processed further for approval by the concerned department/Ministry [Nodal Ministry/Department] than it is imperative that concurrence of such other Departments/Ministries or State Governments is also obtained. However in the event of such concurrence not being possible, the views of the differing Departments are to be appropriately included in the minutes of any such consultative meeting or note prepared consequent thereto on the basis of which approval from the competent authority concerned, be it Minister-in-charge or Cabinet or any of its Committees is being sought. Such minutes or notes should CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 293 of 467 thus reflect the views of the Departments concerned and should also not be paraphrased in a manner that may not correctly reflect the view/point of the consulted department.
349. Thus procedurally under the ToB Rules, 1961, the Minister-in- charge of the Department would be within his right to bring the matters before the Cabinet in all cases of difference of opinion between Ministries whose business is impacted. However, in all cases of differences between Ministries, it is incumbent upon the sponsoring Ministry to honestly reflect the views/comments of the consulted Ministries/Departments alongwith their counter views, if any. The sponsoring department/Ministry ought not to cursorily brush aside the views of the consulted departments/Ministries. This is all the more important and required before the Minister-in-charge of the concerned Ministry may take an objective view as to whether the matter needs to be placed before the Cabinet or any of its Committees or not.