2 Feb 2011
CVC DRAGS PM KNOWING PENDING CASE SINCE 2008
From Our Delhi Bureau
NEW DELHI: Central Vigilance Commissioner P J Thomas has dragged Prime Minister Manmohan Singh's name in his latest affidavit, stating that he not only knew about his pending Palmolein import case since 2008 but also noted the Kerala government's request to withdraw sanction of prosecution.
In the affidavit filed on Tuesday, he quotes the CVC report of October 6, 2008 clearing him and seven other IAS officers for empanelment as the secretaries to the Government of India as also the detailed note of the Department of Personnel dated October 17, 2008 on the vigilance status based on the CVC report. The CVC had cleared the names submitted by the government except that of Parminder Singh against whom a sanction was granted to CBI for his prosecution under the Prevention of Corruption Act.
Thomas quotes the department's note to point out that there were some or the other charges against each officer but they were cleared by the CVC for appointment as the secretaries. In his own case, the note says: "Chargesheet in Palmolein case. Prime Minister notes request for withdrawal of sanction. No response from State Govt., regarding justification for reversing this stand. No sanction under P.C.Act. CVC also cleared the officers of wrongdoing."
He points out that in his case it was observed that "The PM has ordered that in view of the fact that there are no disciplinary proceedings in the case, the request of the State Government regarding withdrawal of request for sanction of prosecution is noted."
"An additional consideration was the fact that as the event was nearly one a half decades old, it should not come in the way of my empanelment," Thomas said.
He also took pride in stressing in the affidavit that the petitioner's lawyer seeking his dismissal had himself stated in the Court on January 27 that he (Thomas) is not corrupt and there is no doubt about his integrity. Of course, the lawyer stated that "I was not proactive, and, like many of my predecessors, I would not be combative in my new dispensation."
Thomas also stressed that the inquiry about documents placed before the selection committee may not be relevant since all those shortlisted were secretaries to the Government of India who "by virtue of their process of selection as secretaries, are deemed automatically to be of impeccable integrity."
He also pointed out that he was the seniormost among more than 40 IAS secretaries to the Central Government and "it would not have been appropriate to have entirely ignored me, especially when I had received vigilance clearance as well."
As regards the Court seeking clarification on his suitability to satisfy the CVC Act that calls for "knowledge and experience in the matters relating to vigilance, policy making and administration including police administration, Thomas has stated that he has been the chief secretary of Kerala for 16 months and that the vigilance and police in the entire state was under his direct control.
He also noted that he was the seniormost and the only person who had served as a chief secretary in the panel of three considered for the post of the CVC. The other two were Bijoy Chatterjee and Subbaroyan Krishnan.
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (c) No.348 OF 2010
IN THE MATTER OF:
Centre for Public Interest Litigation & Anr. … Petitioner
Versus
The Union of India Ltd. & Anr.,
REPLY OF RESPONDENT No.2 TO THE ADDITIONAL AFFIDAVITS ON BEHALF OF THE PETITIONERS
I, P.J. Thomas, S/o. P J Joseph, aged 60 years, presently holding the post of Central Vigilance Commissioner, Central Vigilance Commission, Satarkata Bhavan, A-Block, GPO complex INA, New Delhi–110023, do hereby solemnly affirm and declare on oath as under:-
1. I am presently holding the post of the Central Vigilance Commissioner of the Central Vigilance Commission since the afternoon of 07.09.2010, after being sworn in by Her Excellency the President of India. I also submit that on 24.01.2011 I had filed a detailed counter affidavit addressing the issues raised in the Petitioner on behalf of the Petitioner and the contents of the said counter affidavit may kindly be read as part and parcel of the present affidavit. The same is not repeated herein for the sake of brevity. I deny each and every averment/contention and submission made by the Petitioners in the Additional Affidavits connected with the Deponent unless expressly admitted in this Counter Affidavit.
2. At the outset, I would submit that the Counsel for the Petitioner herein has fairly stated before this Hon’ble Court at the hearing of 27.01.2011 that I am not corrupt and that there is no doubt about my integrity. He however stated that I was not proactive, and, like many of my predecessors, I would not be combative in my new dispensation.
3. I also must state that the enquiry about the documents being placed before the 3 Member Committee may not be relevent in light of the fact that all the names on the shortlist were of Secretaries to the Government of India, who, by virtue of their process of selection as Secretaries, are deemed automatically to be of impeccable integrity.
4. It is submitted that former Secretaries to the Government of India are eligible to be appointed as the Administrative member of the Central Administrative Tribunal [Section 6(2)(a) of The Administrative Tribunals Act, 1985] and Chairman of the TRAI [Section 4(b) proviso of the Telecom Regulatory Authority of India Act, 1997]. At the time of these appointments, it is assumed that by virtue of being Secretaries to the Government of India, where they would have held very sensitive information in ministries like Home, External Affairs, Finance and Law & Justice, they would be fit to handle responsibilities as chairman of the Tribunals. It can hardly be contended that I am deemed fit to be Secretary to the Government of India (as I had been empanelled) but not to hold my present post.
5. It is when the names are being considered for empanelment as Secretaries to the Government of India that vigilance clearances are sought and granted. In my case, through a letter dated 23.8.2008, the Cabinet Secretariat sought from the Department of Personnel & Training (DoPT) the vigilance status of myself and 8 others from the 1972 & 1973 batches of the IAS. This letter dated 23.8.2008 is annexed hereto and marked as Annexure R-1.
6. Subsequentl
7. On 17.10.2008, a detailed note on the vigilance status of each of the 9 officers in question was furnished by the DoPT, which makes vivid reading as far as the manner in which civil servants are subject to the filing of criminal complaints against them. The table below will illustrate in brief the contents of this Report.
Sl.No. | Officer | Cases filed | CVC |
1. | B.R.Kundal | Chargesheeted for misappropriation of sale proceeds of essential commodities. | Cleared |
2. | Parminder Singh | CBI FIR. Chargesheet filed and sanction granted under PC Act. | Not cleared |
3. | V.Jayashankar | (i) Suspension of employee without Ministerial approval, awaiting evidence; Spending Govt. money for personal cases; (ii) Complaint by Genl., Secy., Rashtriya Shakti Dal in which Report is awaited; (iii) Complaints regarding embezzlement, corruption and use of Govt., funds in which report is awaited; | Cleared |
4. | P.J.Thomas | Chargesheet in Palmolein case. Prime Minister notes request for withdrawal of sanction. No response from State Govt., regarding justification for reversing this stand. No sanction under P.C.Act. CVC also cleared the officers of wrongdoing. | Cleared |
5. | V.S.Dhumal | Complaint of immovable property acquired disproportionate to known sources of income, but in which additional information is awaited. | Cleared |
6. | Tejinder Kaur | CBI recommended action on transfer of 15 acres of Govt. land to the cricket association. Case is under action and sub-judice. | Cleared |
7. | Ashok Kumar | Complaint of misuse of office and corrupt practices in which State report is awaited. | Cleared |
8. | Bijoy Chatterjee | Not cleared by State Government due to non-submission of asset statement and also does not figure in the State’s Quarterly Report. | Cleared |
9. | Brajabeharai Mahapatra | Chargesheet regarding wrongly claiming reimbursements and penalty of reduction to lower scale of pay imposed. Also complaint of corruption in which UPSC has recommended punishment. | Cleared |
The above clearly shows that virtually every single officer in the zone of consideration had complaints or chargesheets pending, but it is the CVC that looks into the entire material and decides whether clearance ought to be granted or not. An impression has been created that my case is a unique one, and that I alone suffer some taint against my name. Clearly, it is routine for officers in the discharge of their duties to have cases slapped against them, many of which are trumped up or politically motivated. In an environment where a bureaucrat bears the brunt of protests against governmental action, it is necessary that an objective view be taken of how we officers function.
In fact, in my case, it was observed that “The PM has ordered that in view of the fact that there are no disciplinary proceedings in the case, the request of the State Government regarding withdrawal of request for sanction of prosecution is noted”. An additional consideration was the fact that as the event was nearly one a half decades old, it should not come in the way of my empanelment. The note dated 17.10.2008 is annexed herewith and marked as Annexure R-4.
8. I submit that I am unaware of the procedures adopted by the Government of India in forwarding the 3 names to the Committee. However, at the time of oral hearing before this Hon’ble Court, the Attorney General had submitted a list of individuals from whom the present shortlist was prepared, and in which reference was made to Mr.Sujit Banerjee, who was a 1972 batch IAS officer, who was senior to me and who held the post of Secretary, Ministry of Tourism. It is submitted that at the time that the shortlist was prepared and our names considered, Mr.Banerjee had already superannuated on 31.7.2010. However, in all fairness, I must say that Section 3(3)(a) of the Act does not require the officer to be in service at the time of consideration. I can only presume that the Government chose to consider in-service officers. At that point of time, of the more than 40 IAS Secretaries to the Central Government, I was the seniormost. It would not have been appropriate to have entirely ignored me, especially when I had received vigilance clearance as well.
9. The Bench of this Hon’ble Court had also sought clarification on my suitability in satisfying the requirements under Section 3(3)(a) of the CVC Act, 2003, which calls for “knowledge and experience in the matters relating to vigilance, policy making and administration including police administration”. I was the Chief Secretary of Kerala for a 16 month period from 18.9.2007 to 22.1.2009. The duties of the Chief Secretary include the following:
a) The Vigilance and the Police in the entire State is under the direct control of the Chief Secretary.
b) The Annual Confidential Reports of both the Director General of Police and the Director of Vigilance Investigation are initiated by the Chief Secretary.
c) The Chief Secretary is in overall charge of implementing the policies of the State Government, and ensuring the smooth working of general administration.
In addition to all the above, I was also Secretary, Elections and Chief Electoral Officer (Law & Justice) and Secretary Personnel & General Administration as is borne out by my bio-data. These facts bear witness to my fully satisfying the legal requirements of Section 3(3)(a) of the CVC Act.
10. I may add that of the three names shortlisted for consideration [Mr.Bijoy Chatterjee, Mr.Subbaroyan Krishnan and myself], I was the senior most and the only person who had served as a Chief Secretary.
11. Without prejudice to the above, I would say that IAS officers would not normally have any direct experience of investigation and vigilance, except in a supervisory role. Such a qualification would only be available to IPS officers. However, every single past Central Vigilance Commissioner (after the first incumbent) has been from the administrative services as is evident from the table below:
Sl. No. | Name | Tenure |
1. | S. Dutt, ICS | 28.10.1968 - 16.02.1972 |
2. | B.K. Acharya, ICS | 09.09.1972 - 08.09.1977 |
3. | M.G. Pimputkar, ICS | 17.09.1977 - 30.04.1980 |
4. | R.K. Trivedi, IAS (UP:1946) | 30.10.1980 - 18.06.1982 |
5. | R.P. Khanna, IAS (BH:1949) | 08.07.1982 - 07.07.1985 |
6. | U.C. Agarwal, IAS (OR:1952) | 08.07.1985 - 07.07.1988 |
7. | C.G. Somiah, IAS (OR:1953) | 17.10.1988 - 26.03.1990 |
8. | T.U. Vijayasekharan, IAS (OR:1955) | 04.04.1990 - 03.04.1995 |
9. | S.V. Giri, IAS (AP:1960) | 03.11.1995 - 09.08.1998 |
10. | N. Vittal, IAS (GJ:1960) | 03.09.1998 - 02.09.2002 |
11. | P. Shankar, IAS (TN:1966) | 03.09.2002 - 02.09.2006 |
12. | Pratyush Sinha, IAS (BH:1969) | 07.09.2006 - 06.09.2010 |
12. I may add that the Vigilance Commission comprises myself along with the other 2 Vigilance Commissioners. Mr.R.Sri Kumar is an extremely capable officer of the 1973 batch of the IPS who has been DGP of Karnataka and has had a very distinguished tenure after his graduation from IIT(Madras) in 1970. Mr.J.M.Garg has had more than 37 years’ experience in the banking sector, both in India and abroad, with an impeccable record. His final tenure of nearly 21 months as Chairman of Corporation Bank has been particularly of note, with the Bank growing from strength to strength under his able leadership. These 2 individuals bring in peerless experience in the fields of policing and banking, exactly as envisaged by the CVC Act, and it is my belief that this complement of 3 individuals from fields of administration, policing and commerce would compose a well-balanced Vigilance Commission.
13. With reference to my tenure in the Department of Telecommunications, I state that I was appointed as Secretary to the Department on 01.10.2009. The 2G license and grant of spectrum allocation had already taken place in January 2008 i.e. 20 months prior to my appointment. I have taken all the steps as is required in discharging my duty as the Secretary to the Ministry without in any way obfuscating any process. It is further submitted that, it was during my tenure that the 3G/BWA (Broad Band Wireless) spectrum auction was conducted which resulted in a record revenue of Rs.107,000 Crores to the Government of India, which is not being highlighted by the Petitioners herein.
14. I may also state that after my appointment as CVC, when the question of investigation of the non-compliance with spectrum obligations was raised by this Petitioner before this Hon’ble Court, for the sake of transparency I volunteered to recuse myself from supervising the investigation. This is recorded in the Order dated 01.12.2010 which is annexed herewith and annexed asAnnexure R-5.
15. As far as the allegations regarding the appointment of tainted officers (Sinha and Gandhi) during my tenure as Secretary, DoT is concerned, the facts are as follows:
a) R.S.P.Sinha: A proposal for extending his tenure as CMD of M.T.N.L. was pending decision by the Appointment Committee of the Cabinet (ACC), despite the pendency of cases against him. The Department of Telecommunication is not authorized to terminate the services of a person appointed by the ACC on expiry of his tenure, but only on his superannuation. Sri Sinha was superannuating only on 30.09.2011 and hence the orders were issued by Ministry of Communication and Information Technology (MOC & I.T.) extending his tenure pending decision by A.C.C. This was exactly in accordance with the Standing Instructions of the Cabinet Secretariat of 12.12.1986 & 21.11.1996, and was implemented by a letter of 8.1.2010. This was stayed by the Hon’ble Delhi High Court by Order dated 14.1.2010, and further to this ACC rejected the proposal of extension which led to Mr.Sinha being relieved of his duties as per law. True copies of the Cabinet Secretariat’s instructions of 12.12.1986 & 21.11.1996 are annexed herewith and marked asAnnexure P-6 (Colly.).
b) T.R.Gandhi: I say that in filling of the post of Director Finance in Bharat Sanchar Nigam Limited (BSNL), the Public Enterprises Selection Board recommended two candidates, Ms. Anita Soni, Director Finance (M.T.N.L) in February 2009 and Shri T.R.Gandhi, General Manager, (M.T.N.L). However, after having consulted the AICTE, the Association of Indian Universities (AIU) and the Department of Higher Education, Ms.Anita Soni was not found to have the required qualifications. Thereafter, the name of T.R. Gandhi was proposed for the appointment to the post of Director Finance in BSNL. The ACC did not approve the proposal on 18.2.2010 but no reasons were given for the same. When Mr.Gandhi submitted a representation dated 2.3.2010 for his appointment, the Honb’le Minister of Communication and I.T. ordered the same for resubmission to the ACC. This was also rejected by the ACC on 4.6.2010. It is submitted that the proposal was initiated by the Minister. It is also wholly false to say that the ACC reprimanded me. In fact, the ACC merely directed the DoT to quickly fill the post, but no final appointments were possible due to the stay order dated 25.8.2010 passed by the Delhi High Court in Mr.Gandhi’s Writ Petition(c) No.4107 of 2010. The case is now posted for 21.2.2011. A true copy of this Order of the High Court dated 25.08.2010 is annexed herewith and marked as Annexure R-7.
In a letter dated 2.11.2010 of the Deputy Director General Access Services [DDG(AS)] of the DoT, both the above allegations have been dealt with at length and found to be unfounded and untrue. This letter is annexed herewith and marked as Annexure R-8.
16. I wish to only add that any officer who discharges his duty honestly could well be in the position I now find myself in. It is very unfortunate that politics has rendered me an unfortunate victim, when admittedly my integrity is not in doubt. Several authorities across the political and executive spectrum have exonerated me, and my only fault probably is that I have not approached the media to carry my side of the story. I am however heartened by the statement issued by the Association of Kerala IAS Officers, who have worked with me for years, and have stated that I am of impeccable integrity. True typed copies of certain news reports of 2nd and 3rd December 2010 are being annexed herewith and marked as Annexure R-9 (Colly.).
17. I had been repeatedly approached by the print and electronic media to set out my defence of the case to them. I steadfastly refused, as I had decided that I would place my side of the case before this Hon’ble Court and not before the media as the matter was sub-judice. As the media was not aware of my side of the story, they proceeded on the basis that I have no defence whatsoever and as a result, my reputation has taken a beating at their hands. The consequence is that I have been held out to the public as a “tainted official”. This is rather tragic as my record during 37 years of service has been without blemish.
18. I have demonstrated in the main Counter Affidavit that I was caught in the controversy arising out of the rivalry between a Chief Minister and a former Chief Minister in Kerala. That is the very reason that it was the Left Democratic Front (LDF) Government that granted sanction for the offence under S.120-B IPC against the former Chief Minister Sri K.Karunakaran as well as the other accused (which included me), but the Central Government (both NDA and UPA) did not grant sanction under Section 19 PC Act for over 12 long years against me and the other All India Service Officer, Mr.Jiji Thomson.
19. The legal issues of this case aside, I feel as strongly as this Hon’ble Court does about the importance of the CVC’s institution and the process that dealt with my appointment. It is my clear intention, one fortified by my oath, that there will be no fear or favour in my conduct, and that it will be independent and honest.
DEPONENT
VERIFICATION
Verified at New Delhi, on this the First day of February , 2011, that the contents of the above affidavit in Para Nos.1 to 19 are true and correct to my knowledge, belief and as per legal advice and no part of it is false and nothing material has been concealed there from.
DEPONENT
Drafted By:
Gopal Sankaranarayanan,
Wills Mathews & Rajdipa Behura, Advs.
Settled By: K.K.Venugopal, Sr.Advocate
Typ/W&W/1870/1/2/2011
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