Sparsh Samaj Kalyan Samiti (Regd) ... vs Union Of India And Ors.
1993 Latest Caselaw 688 Del

JUDGMENT

Gokal Chand Mital, C.J.

(1) This petition has been preferred by Sparsh Samaj Kalyan Samiti, and by Mr. S.K. Sahijpal, its President. It is incorporated in the petition that petitioner No. 1 is a social organisation crusading against the socio-economic and political corruption with an objective to preserve the basic philosophy and to uphold the dignity and majesty of the Constitution of India.

(2) The petition is directed against respondent No. 2 Mr. Anand Darbari, Chairman-cum-Managing Director, Cement Corporation of India. It is mentioned in the petition that respondent No. 2 in league and collusion with other officers of the Cement Corporation of India, disposed of the sub-standard cement, manufactured by the Cement Corporation of India, vide office note dated 15.3.1991, prepared by Sales Officer Mr. A.D.Sharma. It is further stated that the said office note specifically mentioned that the said sub-standard cement to the tune of 31,000 bags i.e. 757.90 M.T. was rejected by the Delhi Development Authority on the ground of quality vide test report prepared and issued by Shri Ram Institute of Industrial Research on 26th May, 1990.

(3) It is further alleged that despite the knowledge of the said sub-standard cement, respondent No. 2 ordered the said sub-standard cement to be sold to the Union Territory of Chandigarh, and Jullundur, Punjab.

(4) It isfurtherallegedthatrespondent No.2 had placed order for supply of three D.G. Sets on M/s. Kirloskar Engines Oil Ltd. knowing fully well that the said company was disqualified at the pre-qualification stage, for entering into the bid since it has neither the technical expertise to manufacture the said D.C.Sets of particular specifications nor has it ever earlier manufactured any D.G. Sets of the said requirement.

(5) It is further stated that the Cement Corporation of India placed another order on M/s. Wartsila Engine for supply of three D.G. Sets. The said company assembled the entire unit with 95% of the imported components. By directly importing the Dg Sets under the liberalised import policy, the Cement Corporation of India could have saved at least 25 per cent of its original price.

(6) It is alleged that the high-handedness of respondent No. 2 is further exposed and revealed from the fact that despite a detailed report-cum-cost benefit analysis given by the Bhokajan Unit, the respondent No. 2 did not adhere to the same. Respondent No. 2 intentionally for ulterior motive placed an order for supply of 4 Mw Dg Sets against the actual requirement of 0.8 Mw thereby incurring huge financial losses to the Corporation.

(7) The petitioner has also submitted that malafide intention of respondent No.2 is further made evident from the fact that during the period when cement was in short supply, he directly invited the tender from one of its parties M/s. Krishna Traders, in which one of the partners was a partner in another family firm under the name and style of Surya Enterprises, a stock of C.C.I. The said party was also given benefit of Rs. 5 per bag by way of cash rebate, dealer's commission and quantity rebate. The petitioner has alleged that respondent No. 2 in connivance with his officers has deliberately given cement to certain individuals knowingly, against fake and forged Government orders.

(8) This Court issued notice to the respondents on 22.2.1993. In pursuance of the notice a detailed reply has been submitted by respondent No. 2. In the reply, he has denied allegations levelled against him in the petition. Respondent No. 2 has also taken preliminary objections. He has submitted that petitioner No. 1 is not a registered society as mentioned in the petition. He has also submitted that a careful examination of the facts mentioned in the counter-affidavit would clearly establish that there is absolutely no public interest involved in this writ petition. It is purely a personal litigation of Mr. K.D. Gupta, the Ex. Director (Personnel) of the Cement Corporation of India, which is sought to be ventilated in this petition. In fact this petition has been filed at the behest of Mr. K.D. Gupta.

(9) It is submitted that Mr. K.D. Gupta had filed two earlier writ petitions, Cwp 291/91 and Cwp 1967/92 against the respondent No. 2. It is further submitted that Mr. K.D. Gupta has since been removed from the service of the C.C.I, and therefore, this petition has been filed by the petitioners at the instance of Mr. K.D. Gupta. The petitioners are acting as his stooges.

(10) The reply-affidavit has also been submitted by respondent No. 4, the C.B.I. It is mentioned that some complaints related to the allegations mentioned in paragraphs 4, 7, 9, 10,13, 16 and 17 of the petition were received at New Delhi Branch of the C.B.I.during the period 1990-91.In the affidavit, it is also mentioned that after going through the allegations of the said complaint, it was found that most of the allegations indicated procedural irregularities, so the same were referred to the Chief Vigilance Officer of the Ministry of Industries,

(11) This Court directed the respondent C.B.I, to file a better affidavit. In pursuance of the directions of this Court dated 22.7.1993, better affidavit was filed by the C.B.I, on 8th October, 1993. The relevant portion of the affidavit is reproduced: "THE C.B.I, found that no corruption was involved in the whole issue and was of the opinion that it was a case of bad commercial ethics on the part of Cci officials. The motive for this action was not individual gain of the officers of Cci but an unscrupulous action to prevent loss to their Corporation. Therefore, this matter was referred to Ministry of Industry for taking further necessary action."

The C.B.I, in its affidavit submitted that enquiries were made into the allegation mentioned in para 7 of the petition which shows favor in appointment of M/s. Krishna Traders as the dealer of cement. The petitioners reiterated their submissions and averments in the rejoinder.

(12) Mr. Lekhi, learned Counsel who appeared for the petitioners submitted that the allegations against respondent No. 2 require to be investigated by the C.B.I, and further submitted that this Court may issue orders or directions to cancel the appointment of respondent No. 2 as Chairman-cum-Managing Director of the Corporation. He submitted that the affidavit which has been filed on behalf of the Union of India is virtually no affidavit in the eye of law because there is no proper verification and secondly the affidavit has been filed by the Desk Officer who cannot be authorised to file such an affidavit. He further submitted that various allegations and documents filed Along with the affidavit have not been carefully examined by the C.B.I. He also submitted that both the affidavits filed by the C.B.I, are unsatisfactory. Mr. Lekhi relied on Clause 4.4 of the Vigilance Manual, which is reproduced as under:- "4.4.The Special Police Establishment which now forms a Division of the Central Bureau of Investigation, functions under the administrative control of the Department of Personnel and Administrative Reforms. The Director, Central Bureau of Investigation, also functions as the Inspector General of Police in charge o;f the Special Police Establishment under Section 4(2) of the Delhi Special Police Establishment Act, 1946. The Special Police Establishment Division has two wings i.e. (1) General Offences Wing (G.O.W.) and (2) Economic Offences Wing (E.O.W.). The latter wing deals only with cases relating to economic offences, and was set up in June, 1964 with Zonal Offices at Delhi, Bombay, Calcutta and Madras. All cases against Government servants and other cases not dealt with in the E.O.W. are dealt with in the General Offences Wing (G.O.W.)."

Mr. Lekhi submitted that the procedure as laid down in the aforesaid clause of the Manual, has not been followed by the C.B.I. Mr. Lekhi relied on Fertilizer Corporation Kamagar Union (Regd.) Sindri and Others v. Union of India and Others, Air 1981 S.C.344, delivered by the Constitution Bench of the Supreme Court. He particularly invited our attention to the following portion which is reproduced as under: "A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Arts.32 and 226, with a view to see that effective policing of the corridors of power is carried out by the Court until other ombudsman arrangements - a problem with which Parliament has been wrestling for too long - emerges."

(13) He also relied on R. v. Panel on Take-over? and Mergers, ex parte Datafin plc, (1987) I All England Law Reports, 564. This judgment has been cited primarily to demonstrate that the legal horizons are changing every day and even if the question of extension of relief by way of certiorari may arise, the Court should not feel constrained to refuse such a relief, if the facts warranted it.

(14) Mr. R.K. Jain, learned Counsel for respondent No.2submittcd that the petition is not bona fide. There is no public interest involved in this petition and as a matter of fact, it has been filed at the behest of Mr. K.D. Gupta. Mr. Gupta was twice charge-sheeted by the Government of India, which had direct reflection on his integrity. Mr. Gupta has since been removed from the services of the C.C.I. He is ventilating his grievances in this writ petition. In the reply, it is also mentioned that the petitioner No. 2 had close association with Mr. K.D. Gupta and there is sufficient documentary evidence to show that there is close nexus between him and Mr. K.D. Gupta. A perusal of the visitor's book maintained by the Cement Corporation would reveal that during the past year, the second petitioner had called on Mr. K.D. Gupta in his office of the Cement Corporation for discussing personal matters on as many as 12 occasions. The petitioner No. 2 is merely acting as a stooge of Mr. Gupta. In the reply, it is further mentioned that a significant aspect is the fact that in the visitors' book, on two occasions, the second petitioner has written "Delhi High Court" after his name.

(15) MR.JAIN submitted that on Court's directions, respondent No.4, the C.B.I. has filed a detailed and better affidavit and after investigating the matter, the C.B.I. has come to the conclusion that as sufficient material is not found in these allegations, therefore, the C.B.I, did not deem it appropriate to investigate the matter any further. In view of this affidavit of the C.B.I., nothing more can be ' looked into by this Court. In the constitutional jurisdiction of this Court, there is no other machinery available with the Court by which they can determine veracity of the allegations which have been denied on affidavit. There is no other investigating agency which has greater credibility than the C.B.I. The petition is accordingly devoid of any merits and has to be rejected.

(16) Mr. Jain also relied on the judgment fertilizer Corporation Kamagar Union (Regd.) Sindri and Others v. Union of India and Others, Air 1981 S.C.344 (supra), relied by Mr. Lekhi, and submitted that in para 36 itself, the Court has laid down as under: "WE certainly agree that judicial interference with the Administration cannot be meticulous in our Montesquin system of separation of powers. The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the Court cannot, as a super auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration."

He also referred to para 47. The relevant portion is reproduced below: "LOCUS standi and justiciability are different issues, as I have earlier pointed out. This takers to the question of justiciability of questions like sale of public property by public bodies. Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws. The Court is least equipped for such oversights. Nor, indeed, is it a function of the judges in our constitutional scheme. We do not think that the internal management, business activity or institutional operation of public bodies can be subjected to inspection by the Court. To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness inadministration, bonafides in action, and the fundamental rules of reasonable management of public business, if breached, will become justiciable."

(17) Mr. Jain has also relied upon Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P.and Others, . This judgment has been cited to demonstrate that the Courts cannot be used to settle the old scores between the private parties in the name of public interest litigation. The concluding portion of the judgment relied by the learned Counsel is reproduced. "ARTICLE 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution. But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. Where it appears that this is only a cloak to "feed fact (sic) ancient grudge" and enmity, this should not only be refused but strongly discouraged. While it is the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court. That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights. Having regard to the ugly rivalry here, we have no doubt that between the contestants, the Court was misled and we must, therefore, proceed with caution. There was no fundamental right violation or could be violative if the allegations of the so-called champions on behalf of the society are scrutinised. We must protect the society from the so-called 'protectors'. This application is legally devoid of any merit or principles of public interest and public protection. This application certainly creates bottlenecks in Court, which is an abuse of process of this Court. We have, therefore, no hesitation in dismissing this application with the observations made herein."

(18) Learned Counsel has also cited another Judgment of the Supreme Court, Subhash Kumar v. State of Bihar and Others, The relevant portion of the judgment runs thus:- "ARTICLE 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court. It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen. Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water, and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to proceeding under Article 32 of the Constitution should be taken by a person genuinely interest in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court under Article 32 must approach this Court for the vindication of .the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge orenmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation."

(19) We have carefully examined the submissions made by the learned Counsel for the parties and gone through the authoritative judgments cited by the learned Counsel.

(20) The allegations levelled by the petitioners have been denied on oath by the respondent No. 2. Respondent No. 2 has also alleged that the petition is not bona fide and in fact the petition has been filed at the behest of Mr. K.D. Gupta, a dismissed official of the C.C.I. Petitioner No. 2 is merely his stooge. It is difficult to reach this conclusion that this petition has been filed at the instance of Mr. K.D. Gupta, but at the same time possibility of Mr. K.D. Gupta's interest in this case cannot be ruled out.

(21) Even in a case, where we find prima facie substance or merit in the allegations levelled against an individual or authority, this Court at the most can order a C.B.I, enquiry and direct the C.B.I, to submit its report to the Court. There is no procedure established by law or requisite machinery available with the Court to adjudicate upon allegations and counter allegations based on disputed questions of facts while discharging its extra-ordinary constitutional functions. In the instant case, allegations have already been examined by the C.B.I, and on the basis of the available material, the C.B.I, does not think it appropriate to investigate the matter any further.

(22) In our extra ordinary constitutional jurisdiction, we find our selves quite handicapped in determining or adjudicating highly disputed questions of facts.

(23) The petition is dismissed and in the peculiar facts and circumstances of this case, we direct the parties to bear their own costs.