TaxTMI 
TaxTMI 
2019 (1) TMI 1023
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....T RANJAN GOGOI, CJI 1. That the Rule of law is the bedrock of democracy would hardly require any reiteration. However firmly entrenched the principle may be, it gets tested in a myriad of situations that confronts the courts from time to time. The present is one such occasion. 2. On 23rd October, 2018, the Central Vigilance Commission (hereinafter referred to as "CVC") passed an order divesting Shri Alok Kumar Verma, Director, Central Bureau of Investigation (hereinafter referred to as "CBI") of the powers, functions, duties, supervisory role, etc. vested in him as the Director of the CBI. The exercise of said power by the aforesaid order dated 23rd October, 2018, signed by the Central Vigilance Commissioner and two other Vigilance Commissioners holding office, is stated to be under Section 8(1)(a) and 8(1)(b) of the Central Vigilance Commission Act, 2003 (hereinafter referred to as "the CVC Act") read with Section 4(1) of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as "DSPE Act"). The divestment of Shri Alok Kumar Verma, Director, CBI of his functions, powers, duties and supervisory role, specifically, is in respect of all cases already registered ....
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.... CVC by the Cabinet Secretary by letter dated 31st August, 2018 which, prima facie, revealed charges of corruption against the Director, CBI, Shri Alok Kumar Verma. The CVC considered it worthwhile to take note of the contents thereof and had sought the explanation/comments of the Director, CBI along with the relevant record(s). According to the CVC, instead of cooperating in the matter, the Director, CBI had sought information as to the identity of the person who had complained to the Cabinet Secretary in that regard and had gone to the extent of bringing specific allegations against the Special Director, CBI Shri Rakesh Asthana. Details of several cases of corruption wherein the Special Director, CBI was alleged to be involved were also brought to the notice of the CVC by Shri Alok Kumar Verma. 9. In the order of the CVC dated 23rd October, 2018 it is further recorded that Shri Rakesh Asthana, Special Director, CBI had also made serious allegations against Shri Alok Kumar Verma, Director, CBI and that, in fact, on 15th October, 2018, the CBI had registered RC 13A of 2018 of AC III, New Delhi under Section 7 and 13(2) read with 13(1)(d) and Section 7A of the PC Act as amended in ....
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....o be called the Delhi Special Police Establishment for the investigation in any Union Territory of offences notified under Section 3. 15. Initially the administration of the Delhi Special Police Establishment was governed by the provisions of Section 4 of the DSPE Act which contemplated the following: "4. Superintendence and administration of SPE- (1) The superintendence of the Delhi Special Police Establishment shall vest in the Central Government. (2) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government who shall exercise in respect of that police establishment such of the powers exercisable by an Inspector General of Police in respect of the police force in a State, as the Central Government may specify in this behalf." 16. It is the Delhi Special Police Establishment brought into existence by DSPE Act, 1946 which today is known as the CBI. The origin of the organization has been succinctly traced by this Court in Vineet Narain and others vs. Union of India and another (1998) 1 SCC 226 and the relevant details are available in paragraphs 30 and 31 of the report of this Court in Vineet Narain (supr....
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....transferred to it (para 6) 6. Constitution of a Selection Committee for identifying a panel of names for selection of Director CBI; final selection to be made by ACC from such panel (para 8.2) 7. Central Government to pursue with the State Governments to set up credible mechanism for selection of Police Chief (para 8.3) 8. Director CBI to have a minimum tenure of 2 years (para 8.4) 9. Transfer of incumbent Director CBI would need endorsement of the Selection Committee (para 8.5) 10. Director CBI to ensure full freedom for allocation of work within the Agency, including constitution of investigation teams (para 8.6) 11. Selection/extension of tenure of officers up to the level of Joint Director (JD) to be decided by a Board under Central Vigilance Commissioner; JD and above would need the approval of ACC (para 8.7) 12. Change in the existing Tenure Rules not recommended (para 8.8) 13. Proposals for improvement of infrastructure, methods of investigation, etc., to be decided urgently (para 8.9.2) 14. No need for creation of a permanent core group in the CBI (para 8.9.3) 15. Severe disciplinary action against officers who deviate from prescribed investigation proce....
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....rought into force, came to be issued by this Court. Paragraph 58 of the report of this Court in Vineet Narain (supra) insofar as CVC and CBI are concerned is in the following terms: "58. As a result of the aforesaid discussion, we hereby direct as under: I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE COMMISSION (CVC) 1. The Central Vigilance Commission (CVC) shall be given statutory status. 2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately. 3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI s....
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....or, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of this Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision. 11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI's inhouse expertise, professionals from the Revenue, Banking and Security sectors should be inducted into the CBI. 12. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned. 13. The Director, CBI shall be responsible for ensuring the filing of chargesheets in courts within the stipulated timelimits, and the matter shou....
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.... a Vigilance Commissioner." 21. Though the Director, CBI is to be appointed by the Central Government on the recommendation of a similar High Power Committee, no provision with regard to interim suspension or removal is to be found in the DSPE Act, 1946, notwithstanding the fact that the said Act i.e. DSPE Act was amended by the CVC Act, 2003. The CVC Act, 2003 and the amendments made in the DSPE Act, 1946 were clearly made to bring the provisions thereof in proximity to the directions issued by this Court in Vineet Narain (supra) so far as the CVC and the CBI is concerned. 22. Section 8 of the CVC Act deals with functions and powers of the CVC whereas Section 11 deals with the power of the CVC with regard to inquiries. Both the powers vested by the aforesaid two provisions of the CVC Act i.e. Section 8 and Section 11 having been invoked in the present case to support and justify the impugned actions it will be necessary to extract and notice the said provisions in extenso: "8. Functions and powers of Central Vigilance Commission.- ( 1). The functions and powers of the Commission shall be to ( a) exercise superintendence over the functioning of the Delhi Special Police Esta....
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....ions established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise; (h). exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government: Provided that nothing contained in this clause shall be deemed to authorize the Commission to exercise superintendence over the Vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters; 2. The persons referred to in clause (d) of sub-section (1) are as follows:- (a). members of AllIndia Services serving in connection with the affairs of the Union and Group 'A' officers of the Central Government; (b). such level of officers of the ....
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....es, provide as follows: "4. Superintendence and administration of Special Police Establishment.- (1) The superintendence of the Delhi Special Police Establishment in so far as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the Commission. (2) Save as otherwise provided in sub-section (1), the superintendence of the said police establishment in all other matters shall vest in the Central Government. (3) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government (hereinafter referred to as the Director) who shall exercise in respect of that police establishment such of the powers exercisable by an InspectorGeneral of Police in respect of the police force in a State as the Central Government may specify in this behalf. 4A. Committee for appointment of Director.- (1) The Central Government shall appoint the Director on the recommendation of the Committee consisting of- (a) the Prime Minister - Chairperson; (b) the Leader of Opposition recognised as such in the House of the People or where there is no such Lea....
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....tions i.e. the CVC Act, 2003 and DPSE Act, 1946 (as amended), must be interpreted, according to the learned counsels. It is specifically urged that the embargo under Section 4B(2) of the DSPE Act which mentions that the Director shall not be transferred except with the previous consent of the Committee must be construed in the broadest perspective to include any attempt to divest the Director, CBI of his powers, functions, duties, etc. in any manner whatsoever and not necessarily relatable to the transfer of the incumbent as is understood in ordinary parlance. According to the learned counsels, unless such a meaning is attributed to the provisions of Section 4B(2) of the DSPE Act, the legislative intent would be rendered futile and so would be the entire judicial exercise culminating in the operative directions of this Court in Vineet Narain (supra). 25. So construed, according to the learned counsels, the exercise of power in the present case is blatantly and patently flawed. There can be no legal recognition of the action taken on the strength of the impugned orders which have been notified without seeking the previous consent of the Committee for appointment of Director, CBI co....
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....transfer so as to require the previous consent of the Committee under Section 4B(2) of the DSPE Act. Reliance has also been placed on the provisions of Section 16 of the General Clauses Act, 1897 to persuade the Court to recognise in the Central Government a power to divest the Director, CBI of his powers, functions, duties, etc. According to the learned Attorney the power to divest must be acknowledged to be the logical corollary of the power of appointment of the Director, CBI which is vested in the Central Government. 28. On the other hand, Shri Tushar Mehta, learned Solicitor General appearing for the CVC has argued that merely on the appointment of a Member of the Indian Police Service as the Director, CBI, the incumbent does not cease to be a public servant/government servant. He continues to be, according to the learned Solicitor General, a civil servant; a member of the Indian Police Service amenable to all service conditions as applicable and also to the disciplinary control of the Competent Authority. The only exception in this regard, according to the learned Additional Solicitor General, is provided by Section 4B(1) of the DSPE Act which provides for a fixed tenure of ....
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.... jurisdictional questions that are inbuilt therein. On the aforesaid basis the second question raised can be relegated to a later stage of consideration, which question, we may indicate is one relating to the sufficiency/adequacy or even the relevance of the reasons that had prompted the CVC and the Government of India to take the impugned decisions, a question that may legitimately call for an answer only in the event of our disagreeing with the contentions advanced on behalf of the petitioner on the first issue namely that the divestment of power and authority of the Director, CBI can only be with the prior consent of the Committee. 32. There is no manner of doubt that the enactment of the CVC Act, 2003 and the amendments made by the said enactment, inter alia, in the DSPE Act (by Section 26 of the CVC Act, 2003) are a sequel to the operative directions of this Court in paragraph 58 of Vineet Narain (supra). The legislature in its wisdom had not considered the necessity of tempering down the directions of this Court in Vineet Narain (supra) in any manner whatsoever. The mode and manner of appointment of Central Vigilance Commissioner and Vigilance Commissioners as well as that o....
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....rock. The basic postulate of the concept of equality: "Be you ever so high, the law is above you," has governed all steps taken by us in these proceedings. xxx xxx xxx 48. In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality." 34. These are the basic facts that cannot be overlooked while gathering the intention of the legislature in making the provisions contained in Section 4A and Section 4B of the DSPE Act. An indepth consideration of the matter leaves us with no doubt that the clear legislative intent in bringing the aforesaid provisions to the statute boo....
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....onvey and on that basis the requirement of "previous consent of the Committee" is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be selfdefeating and would clearly negate the legislative intent. In such an event it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament ma....
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.... November, 2018 in sealed cover was sufficiently indicative of the mind of the Court that this aspect of the case should require to be unfolded only if inevitable and that too in the event of a negative decision on the jurisdictional question. The inherent limitation in such an exercise of, if at all is to be undertaken, is another inhibiting factor. Be that as it may such an exercise has now become wholly unnecessary in view of the decision on the jurisdictional issue. 39. Consequently, in the light of our views as expressed above we set aside the following orders dated 23rd October, 2018: (i) of the CVC divesting the powers, functions, duties, supervisory role, etc. of Shri Alok Kumar Verma as Director, CBI (ii) of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training divesting Shri Alok Kumar Verma, Director, CBI of his functions, powers, duties and supervisory role with immediate effect and until further orders. (iii) of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training by which one Shri M. Nageshwar Rao, IPS, Joint Director, CBI has been asked to....