James K. Joseph Silvar Oak v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933** **WP(C).No. 14495 of 2011(J)** **------------------------------------------** **PETITIONER(S):** **-------------------------** **JAMES.K.JOSEPH,SILVAR OAK,P.T.P.NAGAR, TRIVANDRUM-8.** **BY SRI.P.G.THAMPI, SENIOR ADVOCATE, BY ADV. SRI. G. PRIYADARSAN THAMPI.** ## **RESPONDENT(S):** **-----------------------------** **1. THE UNION OF INDIA,REPRESENTED BY THE SECRETARY(PESONNEL),MINISTRY OF PERSONNEL, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI-110 001.** **2. THE DIRECTOR,CENTRAL BUREAU OF INVESTIGATION,NEW DELHI,REPRESENTED BY ITS STANDING COUNSEL,HIGH COURT OF KERALA.** **R1 BY ADV. SRI. P.PARAMESWARAN NAIR, ASST. S.G. OF INDIA R1 BY ADV. SMT.GOVINDA P.RENUKADEVI, CGC R2 BY ADV. SRI. P.CHANDRASEKHARAN PILLAI, SC, CBI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.14495/2011 J** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF WP(C) NO.16915/2005 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT.** - **P2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE SECRETARY (PERSONNEL) TO EXT.P1 BEFORE THIS HON'BLE COURT.** - **P3: COPY OF FILE NOTINGS OF DEPARTMENT OF PERSONNEL AND TRAINING.** - **P4: COPY OF THE LAWYER NOTICE DTD. 23/05/2008 SENT BY THE PETITIONER'S COUNSEL TO THE CENTRAL PUBLIC INFORMATION OFFICER, OFFICE OF CONTROLLER OF AUDITOR GENERAL OF INDIA AND REPLY SENT BY THEM.** - **P5: COPY OF THE MINUTES OF THE SAID 50TH MEETING OF THE SELECTION COMMITTEE.** - **P6: COPY OF THE INFORMATION SUPPLIED BY THE OFFICE OF THE 1ST RESPONDENT DTD. 24/03/2011.** - **P7: COPY OF THE JUDGMENT DTD. 13/03/2009 IN W.A.NO.464/2009 OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **Kss** ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) No.14495 of 2011 -------------------------------------Dated this the 17[th] day of June, 2011.** ## **JUDGMENT** Petitioner was a member of the Indian Audit and Accounts Service (for short, “the IA & AS”) for the period from 1972 to 1996 and while so took voluntary retirement in the year 1996. Petitioner claims that he was actively considered for appointment as Administrative Member in the Central Administrative Tribunal (for short, “the CAT”) but, was denied an appointment due to the fraud and forgery committed by the Secretary (Personnel), Ministry of Personnel, Government of India and others with a deliberate intention. It is contended that the selection committee had selected petitioner but, he was excluded on account of the fraud and forgery as above stated. Petitioner wrote to the Secretary (Personnel) seeking reasons for his not being appointed as member of the CAT. But there was no response. Petitioner filed W.P.(C) No.16915 of 2005 in this Court challenging denial of appointment to him. In that case, the Secretary (Personnel) filed Ext.P2, counter affidavit, claiming that petitioner’s appointment could not be accepted. It is claimed by petitioner that the contentions raised by the Secretary (Personnel) in Ext.P2, counter affidavit are suspicious in nature. Enquiry conducted by petitioner revealed that denial of appointment was due to the adverse report that the Intelligence Bureau (for short, “the IB”) had given. Petitioner got the file notes (Ext.P3) of the Department of Personnel and Training. The adverse observations against petitioner are fabricated by the **WP(C) No.14495/2011** 2 Secretary (Personnel) due to his personal grudge towards petitioner. Petitioner, in the circumstances wants investigation by the Central Bureau of Investigation (for short, “the CBI”) regarding review of selection of petitioner as Administrative Member of the CAT and this Court is requested to issue a direction to that effect. Learned Senior Advocate appearing for petitioner has contended that the matter is so serious that it related to fabrication of a report by the IB at the behest of the Secretary (Personnel) due to personal grudge towards petitioner and that it even affected the process of decision making by a committee headed by the Hon'ble the Chief Justice of India. Learned Senior Advocate has invited my attention to Ext.P5, minutes of meeting of the selection committee regarding review of selection of petitioner for appointment as Administrative Member of the CAT. It is pointed out from Ext.P5, that the committee was apprised of details of the IB report regarding the circumstances under which petitioner had opted for voluntary retirement from the IA & AS and his activities since then, the committee noted that materials reported by the IB were not before it when it considered proposal for appointment of petitioner and the committee happened to recommend petitioner on the basis of his bio-data only. But in view of the adverse report of the IB about petitioner, the committee decided in its 50[th] meeting (the minutes of which is Ext.P5) that earlier recommendation to appoint petitioner as Administrative Member in the CAT has to be withdrawn. Learned Senior Advocate pointed out that the forged report of the IB at the **WP(C) No.14495/2011** 3 instance of the Secretary (Personnel) was the basis for the decision of the committee headed by the Hon'ble the Chief Justice of India. Learned Senior Advocate pointed out that there is a precedent where this Court directed the CBI to register a case and investigate. My attention is drawn to the case involving the alleged murder of one Varghese regarding which there was some (alleged) disclosures made by a Police Constable in a counter affidavit said to be filed in this Court in a Writ Petition and, based on the statement in that counter affidavit this Court directed the CBI to register a case and investigate which was challenged in the Supreme Court but, not interfered with. Learned counsel has given to me for perusal a copy of judgment of the Apex Court in S.L.P.(Crl.) No.4708 of 2007. 2. Learned Standing Counsel for the CBI would contend that there is no reason why this Court should direct the CBI to register a case having regard to the allegations made in the Writ Petition. According to the Standing Counsel, if at all petitioner is of the opinion that any offence has been committed either by the officials of the IB or the Secretary (Personnel) as the case may be, it is open to the petitioner to prefer appropriate complaint before the Police having jurisdiction over the area where the offence is said to be committed and in case the Police does not take any action on such complaint or even otherwise approach the jurisdictional Magistrate with a complaint under Section 190 of the Code of Criminal Procedure (for short, “the Code”). **WP(C) No.14495/2011** 4 3. I have referred to the allegations in the Writ Petition. It is stated that the report of the IB which was the material before the Review Committee headed by the Hon'ble the Chief Justice of India was forged and fabricated at the instance of the Secretary (Personnel), Ministry of Personnel of Government of India. What is produced before this Court in support of the contentions is Ext.P3, which shows that the Secretary concerned gave a report based on the information collected by the IB which the review committee thought is sufficient reason to review their earlier decision to appoint petitioner as Administrative Member of the CAT. When the IB is directed to collect information regarding the person sought to be appointed, it is within their authority to collect information and submit the same to the appropriate authority. If petitioner has a contention that the report is forged or fabricated and that amounts to any offence punishable under the Indian Penal Code or any other law in force, it is not as if petitioner is without any remedy against the offender, petitioner can give information to the appropriate Police Officer. If any information regarding commission of cognizable offence is given to an Officer in charge of a Police Station, it leaves me no doubt that such Officer has to reduce the information to writing and proceed in the manner provided under Section 154 of the Code. I Assuming that the Police Officer does not act under Section 154(1) of the Code, Section 154(3) of the Code comes into operation - petitioner could prefer his complaint to the Superintendent of Police concerned who if satisfied that the **WP(C) No.14495/2011** 5 information disclosed commission of a cognizable offence is either to investigate the case himself or direct an investigation to be made by a Police Officer subordinate to him in the manner provided under the Code. Assuming that inspite of all the above the Police does not take action, then also petitioner is not without any remedy, under Section 190 of the Code petitioner can prefer a complaint before the jurisdictional Magistrate who, either can resort to the procedure under Section 156(3) of the Code by sending the complaint for investigation to the Police concerned (and as the binding authorities say the Police is then bound to register a case and investigate) or, it is within the power of the jurisdictional Magistrate to proceed under Section 200 of the Code and if necessary direct an investigation to be conducted by a Police Officer or other person deemed fit by the Magistrate and submit a report as provided under Section 202(1) of the Code. 4. The above are the modalities prescribed by the Code when a person is aggrieved by commission of cognizable offence. The Supreme Court in **Aleque Padamsee and Others v. Union of India and Others [(2007) 6 SCC 171]** and **Lalitha Kumari v. Govt. of U.P. and another ((2009) 2 SCC (Cri.) 812)** has held that in cases where the Police does not register a case, the party cannot approach the High Court invoking jurisdiction under Article 226 of the Constitution of India to direct the police to register a case. Proper remedy available to the party aggrieved is to approach **WP(C) No.14495/2011** 6 the Magistrate with appropriate complaint. 5. Now, the allegations made in the Writ Petition and the request made are in the form of a rowing enquiry to find out as to whether any fraud or forgery is involved. I am inclined to think, that is not the function of this Court under Article 226 of the Constitution or Section 482 of the Code. Petitioner, if aggrieved and is convinced that any cognizable offence is committed against him, has to resort to the modalities provided under law and stated above. I am not inclined to think, having regard to the facts and circumstances placed before me as well, that this Court is required to direct the CBI or any other Police Officer to register a case as prayed for. Resultantly without prejudice to other rights available to the petitioner, this Writ Petition is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**