Full Judgment Text
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CASE NO.:
Appeal (civil) 3358-3359 of 2002
PETITIONER:
SESCERREVTIACREYS,, MUI.NPO.R&IRORRISG.ATION & RURAL ENGG.
Vs.
RESPONDENT:
SAHNGOO RAM ARYA & ANR.
DATE OF JUDGMENT: 07/05/2002
BENCH:
N. Santosh Hegde & Shivaraj V. Patil
JUDGMENT:
(With CA Nos. 3352-3357/2002 @ SLP Nos.5097-5102/2001 & SLP Nos.16496-97 of 2001)
J U D G M E N T
SANTOSH HEGDE, J.
SLP Nos.6126-27/2001 :
Leave granted.
These two appeals arise out of an order made by the High
Court of Judicature at Allahabad dated 16.3.2001 in Civil Misc.
W.P. Nos.24759 and 28512 of 1999. The original writ
petitioner had filed a number of writ petitions challenging the
various actions taken by the Department against him. In the said
writ petitions he had made very serious allegations against Sri
Markandey Chand who was then the Minister for Minor
Irrigation and Rural Engineering Services in the Government of
U.P. It is seen from the record that the said Minister had filed a
counter affidavit denying the allegations levelled against him.
In the said writ petitions, originally the High Court had passed
certain interim orders staying the action initiated by the
Department against which the Department had filed SLPs
before this Court which challenge was allowed and this Court
as per its order dated 3.4.2000 while directing the parties to
maintain status quo as on the date of the said order, requested
the High Court to hear and dispose of all the writ petitions
within a period of 6 months from that date. After the said order
of this Court, the High Court by its impugned order held that it
was necessary to inquire into the allegations made against the
said Minister. It directed the Central Bureau of Investigation
(CBI) at Delhi to hold an inquiry into the allegations made
against the said Minister (respondent No.2) as early as possible,
preferably within 4 months from the date of the production of
the certified copy of the impugned order.
It is this order that is challenged in these appeals. Mr.
Mukul Rohtagi, learned Additional Solicitor General,
contended before us that the High Court could not have directed
an inquiry by the CBI against the Minister concerned without
coming to a conclusion that there was a prima facie case to hold
such an inquiry which conclusion according to him ought to be
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based on the material on record which obviously means the
allegations made in the writ petition as also the denial of the
Minister concerned should also be taken into consideration. In
support of his argument, he has placed strong reliance on the
judgment of this Court in Common Cause, a Registered Society
v. Union of India & Ors. [1999 (6) SCC 667]. Mr. G L Sanghi,
learned senior counsel appearing for the concerned Minister,
has supported the above argument and has contended that there
is not even an iota of truth in the allegations made against the
Minister, hence, the High Court could not have directed an
inquiry.
Per contra, Mr. P.N. Misra, learned senior counsel
appearing for the writ petitioner, pointed out that the allegations
against the Minister are very serious and the same pertained to
many incidents and similar allegations have been made against
the Minister by a large number of aggrieved Government
servants before the High Court in their respective writ petitions.
He said that there was sufficient material to come to the
conclusion that the allegations made against the Minister are
genuine, thus, he supported the impugned order of the High
Court.
While none can dispute the power of the High Court
under Article 226 to direct an inquiry by the CBI, the said
power can be exercised only in cases where there is sufficient
material to come to a prima facie conclusion that there is a need
for such inquiry. It is not sufficient to have such material in the
pleadings. On the contrary, there is a need for the High Court
on consideration of such pleadings to come to the conclusion
that the material before it is sufficient to direct such an inquiry
by the CBI. This is a requirement which is clearly deducible
from the judgment of this Court in the case of Common Cause
(supra). This Court in the said judgment at paragraph 174 of the
report has held thus :
"The other direction, namely, the direction
to CBI to investigate "any other offence" is
wholly erroneous and cannot be sustained.
Obviously, direction for investigation can be
given only if an offence is, prima facie,
found to have been committed or a person’s
involvement is prima facie established, but a
direction to CBI to investigate whether any
person has committed an offence or not
cannot be legally given. Such a direction
would be contrary to the concept and
philosophy of "LIFE" and "LIBERTY"
guaranteed to a person under Article 21 of
the Constitution. This direction is in
complete negation of various decisions of
this Court in which the concept of "LIFE"
has been explained in a manner which has
infused "LIFE" into the letters of Article
21."
It is seen from the above decision of this Court that the
right to life under Article 21 includes the right of a person to
live without being hounded by the Police or the CBI to find out
whether he has committed any offence or is living as a law-
abiding citizen. Therefore, it is clear that a decision to direct an
inquiry by the CBI against a person can only be done if the
High Court after considering the material on record comes to a
conclusion that such material does disclose a prima facie case
calling for an investigation by the CBI or any other similar
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agency, and the same cannot be done as a matter of routine or
merely because a party makes some such allegations. In the
instant case, we see that the High Court without coming to a
definite conclusion that there is a prima facie case established to
direct an inquiry has proceeded on the basis of ’ifs’ and ’buts’
and thought it appropriate that the inquiry should be made by
the CBI. With respect, we think that this is not what is required
by the law as laid down by this Court in the case of Common
Cause (supra).
Just to point out that there is no prima facie finding by
the High Court, while directing an inquiry by the impugned
order, we would like to extract the following few sentences :
At page 8 of the impugned judgment, it is stated : "It is
also alleged that the petitioner is being harassed owing to the
reason that he was not amenable to the illegal demands made by
the Minister concerned." The High Court further observed :
"We however, forbear from excoriating the Minister on the
basis of what has been said in the said News Magazine at this
stage." Proceeding further, the Court observed : "If the
allegations in the writ petitions are correct, the rights of the
respondents must be vindicated and the party at whose instance
such orders have been issued in bad faith, his continuance in the
office is not in public interest." At page 9 of the judgment, the
learned Judges observed : "If the allegations made in these and
various other writ petitions are found to have any ring of truth,
no sane person can claim that the affairs of the State are being
run in accord with the Constitution." From the above, we see
that the High Court has merely quoted certain allegations made
against the Minister. It has not taken into consideration the
reply given by the Minister. While directing an inquiry by the
CBI, the High Court, as stated in the judgment of this Court in
the case of Common Cause (supra), must record a prima facie
finding as to the truth of such allegations with reference to the
reply filed. In the instant case, we have noticed that the High
Court has merely proceeded on the basis of the averments made
in the petitions without taking into consideration the reply filed
and without expressing its prima facie opinion in regard to
these allegations. This having been not done, we find it
necessary that the judgment impugned should be set aside and
the matters be remanded to the High Court to consider the
pleadings of the parties and decide whether the material on
record is sufficient to direct the inquiry by the CBI. While
doing so, it will take into consideration not only the allegations
made in the writ petitions but also the reply given by the
Minister. After such an exercise if the Court still thinks that the
allegations require a further investigation by the CBI then it
may do so after recording a prima facie finding which, of
course, will be for the limited purpose of directing an inquiry.
We make it clear that we have not expressed any opinion
in regard to the merits of the allegations or the reply thereto
because this is something which has to be done by the High
Court in the first instance.
The appeals are allowed and the impugned judgment is
set aside. The matters are remanded to the High Court.
SLP Nos.5097-5102/2001 :
Leave granted.
These appeals are preferred against the order made by the
High Court of Judicature at Allahabad in Civil Misc. W.P.
No.47130 of 2000 etc. on 1.2.2001. A Division Bench of the
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High Court of Allahabad by the impugned judgment has held
that the petitioner in the said writ petitions has an alternate
remedy by way of petitions before the U.P. Public Service
Tribunal (the tribunal), and had permitted the writ petitioner
therein to approach the tribunal and directed the tribunal to
entertain any such petition to be filed by the writ petitioner
without raising any objection as to limitation. There was a
further direction to the tribunal to decide the matter
expeditiously.
Mr. Sunil Gupta, learned counsel appearing for the
petitioner, contended that the remedy before the tribunal under
the U.P. Public Service Tribunal Act is wholly illusory
inasmuch as the tribunal has no power to grant an interim order.
Therefore, he contends that the High Court ought not to have
relegated the petitioner to a fresh proceeding before the said
tribunal. We do not agree with these arguments of the learned
counsel. When the statute has provided for the constitution of a
tribunal for adjudicating the disputes of a Government servant,
the fact that the tribunal has no authority to grant an interim
order is no ground to by-pass the said tribunal. In an
appropriate case after entertaining the petitions by an aggrieved
party if the tribunal declines an interim order on the ground that
it has no such power then it is possible that such aggrieved
party can seek remedy under Article 226 of the Constitution but
that is no ground to by-pass the said tribunal in the first instance
itself. Having perused the impugned order, we find no infirmity
whatsoever in the said order and the High Court was justified in
directing the petitioner to approach the tribunal. In the said
view of the matter, the appeals are dismissed. No costs.
SLP Nos.16496-97/2001 :
In view of our judgment in C.A. Nos. 3358-59/2002 @
SLP Nos.6126-27 of 2001, no further orders are necessary in
these petitions. They are disposed of accordingly.
.J.
(N. Santosh Hegde)
..J.
May 7, 2002. (Shivaraj V. Patil)
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