Calcutta High Court (Appellete Side)
State Of West Bengal vs Soumen Nandy & Ors on 12 May, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
RVW 83 of 2023
With
IA No. CAN 1 of 2023
State of West Bengal
-versus-
Soumen Nandy & Ors.
In
WPA 9979 of 2022
IA No. CAN 1 of 2023
CAN 2 of 2023
Soumen Nandy
-versus-
The State of West Bengal & Ors.
For the State-review applicant
in RVW application and for the
respondents in WPA 9979 of 2022 :- Mr. S. N. Mookherjee, Ld. A.G.
Mr. Anirban Ray, Ld. G.P.
Mr. Sirsanya Bandopadhyay, Adv.
Mr. Arka Kumar Nag
For the respondents in RVW :- Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.,
application and for the Mr. Firdous Samim, Adv.,
petitioners in WPA 9979 of 2022 Ms. Gopa Biswas, Adv.,
Ms. Payel Shome, Adv.
For E.D. :- Mr. Dhiraj Trivedi, Ld. DSG,
Mr. Samrat Goswami, Adv.
For CBI :- Mr. Billwadal Bhattacharyya, Ld. DSGI,
Mr. Arijit Majumdar, Adv.,
For the Respondent No.13 :- Mr. Sandip Kumar De, Adv.,
Mr. Abhijit Sarkar, Adv.
For DPSC, Hooghly :- Mr. Biswabrata Basu Mallick, Adv.,
Mr. Biman Halder, Adv.
2
For DPSC, Nadia :- Mr. Arindam Chattopadhyay, Adv.
For WBBPE :- Mr. L.K. Gupta, Sr. Adv.,
Mr. Saikat Banerjee, Adv.,
Mr. Ratul Biswas, Adv.,
Mr. Kaushik Chowdhury, Adv.
Heard on :- 08.05.2023
Judgment on :- 12.05.2023
Amrita Sinha, J.
An application for review has been filed by the State of West Bengal
through the Secretary, Department of Urban Development and Municipal Affairs
seeking review of the order dated 21st April, 2023 passed by His Lordship the
Hon'ble Justice Abhijit Gangopadhyay in CAN 02 of 2023 preferred by the
Directorate of Enforcement in WPA No. 9979 of 2022 (Soumen Nandy vs. State of
West Bengal & Ors.).
The said review application has been filed pursuant to the leave granted by
the Hon'ble Supreme Court on 28th April, 2023 in petition for Special Leave to
Appeal (C) No. 8706/2023 filed at the instance of the State of West Bengal
challenging the order dated 21st April, 2023 passed in CAN No. 02 of 23 in WPA
9979 of 2022.
The order passed by the Hon'ble Supreme Court records the synopsis of
the Special Leave Petition which reads as follows:
"9. That the impugned order records that none appears for the
State despite notice, on contrary it is most respectfully
submitted in the said application the applicant has not even
arrayed Department of Urban Development and Municipal
Affairs as a party, instead the applicant had randomly served
Advocates associated with the Ld. Government Pleader's Office,
which was informed subsequently, instead of serving the
concerned Advocates or the concerned Department for
appropriate action. Such mischief by the counsels, ought to
have been frowned upon, instead of being strengthened vide the
impugned order herein."
The Hon'ble Supreme Court observed that the High Court recorded in its
order that none appeared on behalf of the State, though served; but a specific
averment has been made in the SLP regarding non service upon the department of
Urban Development and Municipal Affairs. The Hon'ble Supreme Court opined
that in the interest of justice the State of West Bengal be heard afresh by the High
Court on the issue whether the investigation should be initiated by the CBI.
The Hon'ble Supreme Court permitted the State to move a petition by way
of review before the High Court and the High Court was directed to take a
considered view after hearing the parties.
The learned senior counsel representing the petitioner before the Hon'ble
Supreme Court submitted before the Court that review petition would be moved
within three working days. The Hon'ble Supreme Court requested the High Court
to dispose of the review petition within a week from the date of its filing and
further directed that the CBI and Enforcement Directorate shall maintain the
status quo for a period of a week. The Special Leave Petition stood disposed of.
Pursuant to the order passed by the Hon'ble Supreme Court, the writ
petition stood assigned to this Bench by the Hon'ble the Acting Chief Justice of
this Court on 1st May, 2023 and the cause papers of the case were forwarded to
this Bench on 2nd May 2023. Leave was sought for by the review applicant on 4th
May, 2023 to file the Memorandum of Review without a certified copy. Being made
aware of the time line mentioned in the order passed by the Hon'ble Supreme
Court, this Bench granted leave to file the same and the Memorandum of Review
along with the connected application being CAN 1 of 2023 was filed on 4th May,
2023.
One of the grounds for filing the application for review, inter alia, is that
the order under review was passed without jurisdiction. The Bench dealing with
the matter did not have the jurisdiction to pass order on the application filed by
the Enforcement Directorate to investigate any matter in connection with
recruitment in the municipalities. The Bench in question was assigned the
determination to decide matters relating to primary education under Group-II
including applications connected thereto. As the Hon'ble Bench did not have any
jurisdiction to take up matters relating to municipalities, accordingly, the Court
could not have passed any direction to cause investigation in connection with
recruitment in the municipalities. The order passed by a Bench lacking
jurisdiction is bad in law and liable to be set aside.
In support of the aforesaid submission the learned Advocate General relied
upon the decision passed by the Hon'ble Division Bench of this Court in the matter
of Sohan Lal Baid -vs- State of West Bengal & Ors. reported in AIR 1990 Cal
168 : 1989 SCC Online Cal 224 paragraphs 23, 24, 27 and 28. Reliance has
also been placed on the judgment passed by the Hon'ble Supreme Court in the
matter of State of Rajasthan -vs- Prakash Chand & Ors. reported in (1998) 1
SCC 1 paragraphs 20, 23 and 27.
The next ground seeking review is that the investigation, if at all, ought to
be made by the State agency and not by the CBI. Law and order being a subject
matter of the State under List-II, Schedule-VII of the Constitution, the Court ought
not to have directed the CBI to investigate the same circumventing the State
investigating agency.
The other ground seeking review is that the department of Urban
Development and Municipal Affairs was not made a party in the writ proceeding;
nor any notice served upon the said department prior to moving the matter. The
order ought not to have been passed without affording the department an
opportunity of hearing.
Further ground praying for review is that the application filed by the
Enforcement Directorate did not contain any prayer seeking permission to
investigate. In the absence of a specific prayer, the Court ought not to have passed
direction upon the CBI to proceed with investigation with regard to an alleged
scam in recruitment under the municipalities.
Another ground made out in the petition for review is that 21st April, 2023,
the day when the order complained of was passed, was declared as a holiday on
account of Eid by the State of West Bengal and a resolution was adopted by the
Bar Association, High Court, Calcutta forwarded to the Hon'ble the Acting Chief
Justice and all other Hon'ble Judges of this Court with request not to pass any
order in the absence of either of the parties. The Hon'ble Judge, even though aware
of the said resolution of the Bar Association, proceeded to pass order in the
absence of any representative of the State.
It has been submitted that there are serious procedural errors in the order
complained of and as such the said order dated 21st April, 2023 is liable to be
reviewed.
The writ petitioner, Directorate of Enforcement and the Central Bureau of
Investigation vehemently opposes the submissions of the applicant.
Learned advocate representing Enforcement Directorate submits that the
application for review is not maintainable as the same has been filed out of time. It
has been submitted that the learned senior counsel representing the State before
the Hon'ble Supreme Court made a categorical submission that the petition for
review would be moved within three working days. The State failed to move the
Court within the aforesaid time. The Hon'ble Supreme Court, relying upon the
submission made on behalf of the State, permitted the review to be filed within
three working days and as such any petition filed beyond the said time period is
liable to be dismissed as, not maintainable.
It has been submitted that whether the Hon'ble Judge had the
determination to take up matters relating to recruitment in municipalities is
irrelevant as the primary investigation is in connection with illegal recruitment in
educational institutions and in the process of investigation it came to light that
similar irregularity has cropped up in the recruitment process under the
municipalities. As the investigation is ongoing, the Enforcement Directorate filed
the application to keep on record the brief of the investigation and for passing
appropriate orders.
Learned advocate representing the Enforcement Directorate, the applicant
of the application on which the order impugned was passed, denies the allegation
of the review applicant that no notice was served upon the State prior to moving
the said application. It has been submitted that as the matter is of extreme public
importance and urgent measures were required to be taken to facilitate the process
of investigation, accordingly, leave was sought from the Hon'ble Judge to move the
matter on urgent basis. The Hon'ble Judge granted leave to move the matter at
2.30 p.m. on the self same day. Notice of moving the matter was duly served in the
office of the learned Government Pleader clearly intimating the date and time of
moving the said application. Affidavit of service with proof of service was filed in
court.
The urgency, considering which the Hon'ble Judge passed the order, was
clearly mentioned in paragraph 4 of the application filed by the Enforcement
Directorate. As highly influential persons are supposedly found to be involved in
the recruitment scam both in schools and municipalities, immediate order for
investigation was required to be obtained from the Hon'ble Court.
According to the provisions of Section 66(2) of the PMLA, the Enforcement
Directorate shared the information with the CBI who is investigating the offence of
money laundering and as the irregularity in recruitment under municipalities
appeared as an offshoot of the primary investigation, accordingly, it cannot be said
that the Hon'ble Judge hearing the matter did not have the determination to take
note of the subsequent event and pass consequential order thereon.
As there is no error apparent on the face of the record, and the grounds
available under Order 47 Rule 1 CPC not being satisfied, the petition for review
and the connected application ought not to be entertained by the Court and is
liable to be dismissed.
Learned advocate representing the Central Bureau of Investigation (CBI)
submits that the application for review is not maintainable as the same is not in
conformity with the provisions of Order 47 Rule 1 of the Code of Civil Procedure
which is applicable to the writ proceedings. It has been submitted that there is
neither any mistake nor any error apparent on the face of the record requiring
review of the order. The reasons/grounds set out in the Memorandum of Review
cannot be considered as 'sufficient reason' to review the order passed by the Court.
There is hardly any scope to re-argue the matter in a proceeding for review.
It has been contended that the order dated 21st April, 2023 has already
been acted upon and FIR has already been registered on 22nd April, 2023 on
detection of subsequent offence as per the CBI Manual and there is no reason to
interfere in the matter at this stage by way of a review.
In this connection the learned advocate relies upon the decision passed by
the Hon'ble Supreme Court in the matter of Ram Kishan Fauji -vs- State of
Haryana & Ors. reported in (2017) 5 SCC 533 paragraphs 8, 9, 16, 17, 18, 22,
26, 31, 42, 46, 52, 56, 61, 62 and 63. It has been argued that as FIR has already
been registered, the proceeding has to be treated as criminal proceeding and no
order ought to be passed on review in connection with a proceeding under Article
226 of the Constitution of India.
Reliance has been placed on the judgment delivered by a coordinate Bench
of this Court on 12th March, 2020 in CRR 910 of 2019 in the matter of Ramesh
Chandra Singh & Anr. -vs- Central Bureau of Investigation paragraph 36
wherein the Court opined that there is no bar for the High Court under Article 226
of the Constitution of India to order a CBI investigation.
The judgment of Ramesh Chandra Singh (supra) was carried in appeal
before the Hon'ble Supreme Court and by order dated 13th September, 2021
passed in petition for Special Leave to Appeal (Crl) No. 3020/2020 (Ramesh
Chandra Singh & Anr. -vs- Central Bureau of Investigation & Anr.) the
Hon'ble Supreme Court, being made aware of the fact that a closure report has
been filed, was pleased to close the Special Leave Petition.
Reliance has also been placed on the judgment delivered by another
coordinate Bench of this Court on 12th November, 2013 in CRR 1882 of 2013 in
the matter of Binod Kumar Kabra -vs- State of West Bengal & Ors. where the
Hon'ble Court relying upon the ratio laid down by the Hon'ble Supreme Court in
the matter of State -vs- N. S. Ghaneswaran; 2013 3 SCC 594 held that when a
member of CBI registers an FIR in accordance with the provisions of CBI Manual,
legality thereof cannot be brought into question on that score.
Reference has been made to the ratio laid down by the Hon'ble Supreme
Court in the matter of Devaraju Pillai -vs- Sellayya Pillai reported in (1987) 1
SCC 61 on the issue that the petition for review ought to be heard and decided by
the Hon'ble Judge who passed the order and not by any other Judge.
The decision delivered by the Hon'ble Supreme Court in the matter of
Parsion Devi & Ors. -vs- Sumitri Devi & Ors. reported in (1997) 8 SCC 715
paragraphs 9 and 10 has been relied on the issue that under Order 47 Rule 1 CPC
a judgment may be open to review, inter alia, if there is a mistake or an error
apparent on the face of record. It is not permissible for an erroneous decision to be
re-heard and corrected. A review is for a limited purpose and cannot be allowed to
be an appeal in disguise.
Reliance has been placed on the judgment delivered by the Hon'ble Madhya
Pradesh High Court in Union of India & Ors. -vs- Gokulchand & Sons & Anr.
reported in 2005 SCC Online MP 289: AIR 2005 MP 201 on the same principle
as laid down in Parsion Devi (supra).
It has been argued that the application was moved on service upon the
respondents and as notice was duly served in the office of the learned Government
Pleader, the same amounts to good service. The State respondents, for reasons
best known, did not attend the Court at the time of consideration of the
application. The application had to be moved on urgent basis in view of the
extraordinary circumstances under which the investigation is proceeding. There is
every probability of tampering evidence, terrorising/influencing the witnesses
resulting in interference with the process of investigation.
No prejudice has been caused to the State by directing the CBI and ED to
investigate the matter as the aforesaid investigating authorities are already
investigating the scam relating to recruitment in educational institutions and the
investigation has proceeded to a considerable extent. There ought not to be
separate investigating authorities for investigating the connected offence which has
come to light in course of the investigation.
Service upon the learned Government Pleader has been made in
accordance with the rules of this court and the learned Government Pleader
represents the State including all its departments. As the matter relates to a public
scam where more than one department is involved and as all departments fall
within the meaning of 'State' under Article 12 of the Constitution of India,
accordingly, service upon the learned Government Pleader ought to be taken as
good service.
As several persons involved in the recruitment scam relating to schools are
also involved in the recruitment scam in connection with municipalities and the
proceeds of crime are intermingling with each other, there is no scope to segregate
the investigation and the investigation is liable to be proceeded by the
agency/agencies investigating the same.
Prayer has been made for dismissal of the petition for review and any
application connected thereto.
Learned senior counsel representing the writ petitioner relies upon the
various provisions of the Prevention of Money-Laundering Act, 2002 ('PMLA' for
short) especially Sections 2(na), 2(p), 2(u), 3, 2(y) and the Schedule thereto.
It has been submitted that according to the PMLA, the Enforcement
Directorate is the appropriate authority to investigate the issue. The application in
question was moved upon notice to the parties. The Hon'ble Judge being satisfied
with the service of the application, heard the learned advocates who appeared on
the said date and passed necessary order. No ground has been made out for
reviewing the same. Moreover, the review petition has not been filed within the
time granted by the Hon'ble Supreme Court, hence the same ought not to be
entertained.
The investigation process is continuing and the said ongoing investigation
ought not to be either stalled or interfered with by this Court. It has been
submitted that the review application is not maintainable as the grounds
mentioned in the Memorandum of Review are not in accordance with the Civil
Procedure Code which is very much applicable to the writ proceeding and not good
enough for reviewing the order.
The writ petitioner relies upon the judgment dated 18th April, 2023 passed
by a coordinate Bench of this Court in WPA 7666 of 2023 (Usuf Ali Seikh -vs-
State of West Bengal & Ors.) wherein the Court was of the opinion that an
agency already investigating the same or similar set of facts and/or crime may be
better suited, equipped and experienced to investigate the subject.
Reliance has also been placed on the judgment delivered by an Hon'ble
Division Bench of this Court on 22nd September, 2022 in RVW 159 of 2022 in
WPST 102 of 2020 with CAN 1 of 2022 in the matter of The State of West
Bengal & Ors. -vs- Confederation of State Government Employees, West
Bengal & Ors. wherein the Court held that although the High Court enjoys a
plenary power of correcting its mistakes or errors in writ jurisdiction, yet by virtue
of the provisions in Order 47 Rule 1 of CPC the same is required to be exercised
bearing the mind the condition enshrined therein.
The writ petitioner prays for dismissal of the petition for review and the
application filed thereto.
In reply to the submissions made by the respondents the learned
Government Pleader submits that as the Hon'ble Supreme Court has opined that
the matter be heard afresh by the Hon'ble Court, as such, in the interest of justice,
the petition for review ought to be allowed by setting aside the order dated 21st
April, 2023 and the State agency be permitted to investigate any offence, newly
detected by the existing investigating authorities.
I have heard and considered the rival submissions made on behalf of both
the parties.
The proceeding in question is a petition for review of the order passed by a
coordinate Bench of this Court on an application filed by the Enforcement
Directorate by directing the CBI to file a report as to what steps have been taken
by them after detection of the scam relating to the recruitment in the
municipalities.
The State, through the department of Urban Development and Municipal
Affairs, has filed the petition for review seeking leave to investigate the matter by
the State agency, and not by the CBI, as directed. The State intends to keep the
investigation within their control on the ground that enforcement of law and order
being a State subject ought to be in the hands of the State agencies.
The Court is unable to accept such contention of the applicant.
The circumstances under which the Hon'ble Judge passed the order is very
evident from the order itself. The status report on the investigation conducted by
the Enforcement Directorate in connection with the primary teachers' recruitment
scam is quoted in the order sought to be reviewed. The report records that several
crore of rupees, documents/electronic evidences were seized from several high
ranking officials of the government including the Minister-in-Charge of Education,
Member of the Legislative Assembly and ex-President of the West Bengal Board of
Primary Education, several persons in the Bengali film industry and other highly
influential politicians and individuals.
In the course of investigation, the investigating agency got the lead that
several persons involved in the scam relating to recruitment in schools, are also
involved in the scam relating to recruitment in the municipalities. The proceeds of
crime in the two set of offences, one in the schools and the other in the
municipalities, are intermingled with each other.
The figures mentioned in the status report are mind boggling. Several high
ranking officials of the State Government involved in the scam are behind the bars
at present and the investigating agencies are proceeding to identify the others
involved in the crime. The investigation has proceeded to a fair extent and at this
stage it will be highly improper to allow some other investigating agency to
conclude the investigation. The connecting crime that has been unearthed recently
appears to be a part of the entire big scam relating to job in-lieu-of cash either in
the schools or in the municipalities.
It may happen that while proceeding with the investigation, the
investigating agencies may come across similar crime in connection with
recruitment in other departments of the State. It is not only desirable, but at the
same time convenient, if one crime can be investigated upon by only one agency
and not by several investigating agencies otherwise, there may always be a chance
of having conflicting views/opinion and the investigation may be delayed
unnecessarily and may not reach its logical conclusion.
The Court ought to ensure that the investigation is conducted diligently,
with utmost importance and in a time bound manner. Handing over or permitting
a separate agency to investigate subsequent offences detected in the course of
investigation will inevitably result in delay of the process and in turn will aid the
persons involved in the crime to remove/ destroy/ tamper evidences, influence/
terrorise witnesses and so on and so forth.
It is absolutely logical and proper to permit the investigation to be
concluded by the agency/agencies who is/are in the know of the information and
inputs in connection with the crime. For all practical purposes, the existing
investigating authority ought to be permitted to conclude the process of
investigation.
The same principle has been followed by this Court in the matter of
Ramesh Chandra Singh (supra).
It has been argued that the day on which the Hon'ble Judge decided the
case, the said Hon'ble Judge did not have any determination to pass order in
connection with any matter relating to municipalities. The Hon'ble Judge was
vested with the determination to only decide matters relating to primary education
in schools. Sohanlal Baid (supra) has been relied upon to convince the Court that
once the Chief Justice has allocated judicial business of the Court, the power and
jurisdiction to take cognizance and hear any matter is derived therefrom. Any
matter not specifically allocated by the Chief Justice cannot be entertained, dealt
or decided by the Hon'ble Judge.
The same principle has been relied in Prakash Chand (supra) wherein it
has been laid down that no Judge can assume jurisdiction in a case pending in a
High Court, unless the case is allotted to him by the Chief Justice. Strict
adherence to this procedure is essential for maintaining judicial discipline and
proper functioning of the Court. No departure from the same can be permitted.
At first blush the submission of the applicant may appear to be of some
substance but a slight lift in the veil will give a clear picture as to why the matter
was entertained by the Hon'ble Judge. It is true that the Hon'ble Judge dealing
with the matter did not have the determination to take up matters relating to
municipalities on the said date. But at the same time, it is also true, that the
origin of the matter was within the determination of education matters which the
Hon'ble Judge was dealing.
The genesis of the scam was revealed while dealing with education matters
relating to primary schools. In the course of investigation of the scam in
connection with schools, the scam relating to recruitment in municipalities was
unearthed. To conclude the investigation of the original scam, the scam relating to
municipalities is also required to be taken note of and investigated accordingly.
The scam in the municipalities is not an independent offence but is a part
of the larger offence involving more or less the same persons, similar nature of
crime, similar proceeds of crime, similar victims that is the common people who
are the unemployed youth of the society. It is a branch of the main tree of crime-
recruitment scam. The two offences may have occurred in two different sets of
institutions but the other factors of the offence remain the same. There may be
several similar such branches and all are required to be investigated to get a
complete picture of the crime that has been committed.
The crime at two separate institutions has been found to be interconnected
and segregating the two is practically not possible. The initial investigation will
remain inconclusive if the subsequent events are not brought under the purview of
the continuing investigation process. Moreover, according to the PMLA, there is a
presumption in interconnected transactions. Law permits such presumption and it
is perfectly justified that investigation be conducted by the existing agency and not
by any separate agency.
In such a situation the Hon'ble Judge thought it apt to pass necessary
order on the application filed by the Enforcement Directorate bringing on record
the subsequent events discovered in the process of investigation.
Learned Advocate General has argued that passing any order in relating to
municipality matter by a judge dealing with education matters was a procedural
error.
Assuming, but not admitting, that there was any procedural error in
passing any order relating to municipalities, the same may be taken care of by this
Bench, as this Bench has been allocated the determination to entertain, hear and
decide matters relating to municipalities. In view of the assignment of the review
petition by the Hon'ble the Chief Justice, this Bench is presently seized with the
jurisdiction to entertain the issue of the writ petition as well as any matter relating
to municipalities. By this way, the procedural error, if any, stands cured.
The next issue raised by the learned Advocate General is that the
application of ED was moved without serving any notice upon the department of
Urban Development and Municipal Affairs. The said department was also not
impleaded as party in the proceeding. In fact, the order of the Hon'ble Supreme
Court granting liberty to the applicant to file petition for review took note of the
fact that the applicant (Enforcement Directorate) randomly served advocates
associated with the learned Government Pleader's office instead of serving the
concerned advocate or the concerned department.
The Hon'ble Judge, in the order sought to be reviewed, specifically recorded
that the application was filed after obtaining leave from the Court to move the
same on urgent basis on the same day (21.04.2023). Considering the urgency, the
Hon'ble Judge granted leave to move the matter at 2.30 p.m. upon notice to the
respondents. The original notice showing service in the office of the learned
Government Pleader was produced before the Hon'ble Judge. The said notice was
returned to the learned advocate for the applicant (ED) for affirming the affidavit of
service.
I have perused the said affidavit of service and the notice attached thereto.
It was clearly mentioned in the notice that the application was filed after obtaining
leave from the Hon'ble Court and would be moved at 2.30 p.m. on the self same
date. According to Rule 26 of the Rules of the High Court at Calcutta relating to
applications under Article 226 of the Constitution of India where the State
Government is a party, service upon the Government Pleader is sufficient.
It was the obligation of the learned Government Pleader or the officials
attached to the office of the learned Government Pleader accepting notice to ensure
that the State is represented when the matter is taken up for consideration by the
Hon'ble Court. At the time of service of any notice/petition/application the office of
the Government Pleader verifies the same as to whether 48 hours' time has been
given prior to moving the matter before the Hon'ble Court. As the matter was
sought to be moved on urgent basis, accordingly, urgent measures ought to have
been taken to represent the State before the Hon'ble Court.
As the Government Pleader is authorised to represent all the departments
of the State, accordingly, submission on behalf of the review applicant that the
State or a particular department of the State was not served, cannot be accepted
by the Court.
Further ground for review is that, the day the order was passed by the
Hon'ble Judge was a holiday declared by the State of West Bengal and resolution
was adopted by the Bar Association of this Court requesting the Hon'ble Judges
not to take up any matter ex parte. Despite being aware of the said resolution, the
Hon'ble Judge took up the matter and decided the same in the absence of the
learned advocate representing the State.
Be it recorded that 21st April, 2023 was a full working day of the High
Court and there was no formal direction or request by the Hon'ble the Acting Chief
Justice not to entertain/hear or decide matters ex parte. The Court, in its usual
course of business, after being convinced with the urgency of the matter, took up
the same and passed order upon hearing the learned advocates who were present
at the time of hearing.
The review applicant ought to have appreciated the reason as to why the
Court granted leave to the applicant (ED) to move the matter on urgent basis on
the same date. The Court was concerned with the nature of allegation made in the
application filed by the Enforcement Directorate. An investigation is under process
involving highly influential individuals, politicians, ministers of the ruling party,
popular film stars etc. and the amount of cash, documents/electronic evidences
recovered at the time of investigation clearly implies that there are every chances of
destroying/removing/tampering the evidences, threatening/terrorising the
witnesses which may interfere with the process of investigation. Each and every
step in the investigation process is extremely vital and any delay in taking action
in proper time may result in a faulty investigation which may later turn out to be
fatal. In such a situation, not passing any order on the application on emergency
basis, would have led to severe miscarriage of justice. The same would have
adverse effect on the investigation itself.
Further submission of the learned Advocate General that there was no
prayer by the Enforcement Directorate for causing investigation, and accordingly,
it was not proper for the Court to pass order for investigation by the CBI and ED. It
has been submitted that the same calls for review of the said order.
The aforesaid submission of the learned Advocate General appears to be
fallacious. On a perusal of the order under review it appears that the Court merely
directed the CBI to file a report with regard to the steps taken by them and the
Director General of Police and Chief Secretary of the State was directed to instruct
all the departments under them to help and assist the investigating agencies while
investigating this scam.
It does not appear that the Court passed any fresh order of investigation,
as possibly, there was no requirement of passing a fresh order of investigation. The
process of investigation was already on and in the course of investigation certain
evidences were found relating to similar scam in recruitment under the
municipalities. No order for fresh investigation was passed by the Hon'ble Judge.
To conclude the continuing investigation, the fresh evidences that were revealed
were liable to be taken note of.
The answering respondents in the review petition i.e. the writ petitioner,
the CBI and the ED unanimously contend that the application for review ought to
be dismissed as being not maintainable as the same is not in consonance with the
provision of Order 47 Rule 1 CPC.
Devaraju Pillai (supra), Parision Devi (supra) and Confederation of State
Government Employees (supra) have been relied upon in support of the
submission that the review petition has a limited purpose and cannot be allowed
to be an appeal in disguise. The review applicant has practically made detailed
submissions on points of law as well as facts to impress the Court that the order
under review ought not to have been passed. The elaborate discussion made
hereinabove clearly indicates that the grounds for review as available under Order
47 Rule 1 CPC are not satisfied in the instant petition.
As regards filing the petition for review one day after the time limit sought
for by the learned senior counsel, I am of the view that as the Hon'ble Supreme
Court directed the High Court to hear the State, accordingly, for ends of justice,
the petition for review is being entertained by the court.
It does not appear that the department of Urban Development and
Municipal Affairs has suffered or may suffer any prejudice by the order sought to
be reviewed. On the contrary, the Court is of the opinion that, the State including
its departments, ought to cooperate with the investigating agencies and ensure
that the investigation that is continuing reaches a logical conclusion at the
earliest, so that the offenders can be booked and appropriately dealt with in
accordance with law. The same will in return enure to the advantage of the State
authorities in identifying the persons involved in the racket of job in-lieu-of cash
and the administration of the State may continue smoothly. The State authorities
ought to actively assist the investigating authorities currently handling the matter,
so as to free the State from the illegalities in the process of recruitment in various
departments of the State.
The Court is convinced that in the facts and circumstances of the instant
case, the petition for review must fail and is, accordingly, dismissed.
On account of dismissal of the review petition the connecting application
also stands dismissed.
There shall however be no order as to costs.
Urgent certified photocopy of this judgment, if applied for, be supplied to
the parties on compliance of usual legal formalities.
(Amrita Sinha, J.)
