Partly allowed

Central Bureau of Investigation v. Manoj Malaviya and Anr.

Bombay HC28 Jul 2010APPP/385/2010

Case brief

AI extract

What is this about?

CBI challenged ad-interim relief in a criminal case involving allegations of misconduct and misuse of tickets by a high-ranking officer. While the Court did not conclusively resolve the dispute over whether the applicant held the level of Joint Secretary, it partially allowed the CBI's application to proceed with investigation without arresting the applicant.

What did the court decide?

Ad-interim relief vacated partly; investigation to be continued without arresting the applicant, who must cooperate with the IO.

Central Bureau of Investigation Vs Manoj Malaviya and Anr. — Corruption | Bombay HC (2010)

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Cri.Appln. No.385/2001

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 385 OF 2010
IN

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CRIMINAL APPLICATION NO. 2796 OF 2010
Central Bureau of Investigation...Applicant
vs.
Manoj Malviya & Anr....Respondents

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Mr.D.J. Khambatta, Additional Solicitor General with
Mr.Afroz Shah and Mr.S.K. Shinde i/b. Mr.Mandar
Goswami for the Applicant.
Mrs.P.P. Bhosale, APP for the State.
Mr.A.P. Mundargi, Sr.Counsel i/b. Mr.Prakash Naik
for Respondent No.1.

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WITH

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CRIMINAL APPLICATION NO. 2796 OF 2010

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Manoj S/o. Giridhar Malaviya ...Applicant
vs.
State of Maharashtra & Anr....Respondents

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Mr.A.P. Mundargi, Sr.Counsel i/b. Mr.Prakash Naik
for the Applicant.
Mrs.P.P. Bhosale, APP for the State.
Mr.D.J. Khambatta, Additional Solicitor General with
Mr.Afroz Shah and Mr.Mandar Goswami i/b. Mr.S.K.
Shinde for Respondent No.2.

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2 Cri.Appln. No.385/2001

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 CORAM : V.M. KANADE, J.

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P.C. :-

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1Heard Shri Mundargi, learned Senior Counsel

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appearing on behalf of the applicant and Shri
Khambatta, learned Additional Solicitor General
appearing on behalf of the respondents.

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2By order dated 18th June, 2010, ad-interim

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relief was granted by this court in terms of prayer
clauses (b) and (c) and the matter was adjourned to
18th July, 2010 in order to enable the respondents to
file their reply.

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3An application was filed by the CBI vide

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Application No.385/2010 for vacating the ad-interim
relief granted by this court on 18th June, 2010. It

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was submitted by the learned ASG that on the said

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date since the instructions were yet to be received

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by the respondents� Counsel, time was taken for the

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3 Cri.Appln. No.385/2001

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purpose of filing an affidavit-in-reply. He
submitted that the applicant cannot get the benefit
of provisions of Section 6A of the said Act since he
does not belong to the level of Joint Secretary. He
submitted that since the Investigating Officer was
not present in the court on that date, no specific
statement was made and therefore, the present
application was filed. Since the main application
was also placed on board, I thought it fit that it
would be proper if the applicant makes a submission
and thereafter, on this point alone, the learned ASG
makes his submission in support.

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4Shri Mundargi, learned Senior Counsel

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appearing on behalf of the applicant firstly
submitted that the various documents which are
annexed to the application and the affidavit-in-

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rejoinder clearly indicate that the applicant falls
under the category of Joint Secretary or a person to
the level of the Joint Secretary. He submitted that
the applicant initially was working as a Deputy

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4 Cri.Appln. No.385/2001

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Inspector General of Police (DIG) and in 2005, he

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was sent on deputation to the post of Additional
Commissioner (Security) which is under the Ministry
of Civil Aviation. It is submitted that he made an
application for being accorded in Situ promotion in
2008, however, initially his application was
rejected by letter dated 28th May, 2008. He submitted
that however, subsequently, on 13th October, 2008
this request was accepted and he was granted the pay

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scale of Joint Secretary or equivalent to Joint
Secretary. He invited my attention to letter dated

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13th October, 2008 annexed at page 46 to the
application filed by the CBI.

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5It was then urged that as a result of the

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said proforma promotion, the applicant was, in fact,
promoted to the post of Inspector General though it
was non-functional on account of his deputation.

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6On the other hand, the learned ASG
submitted that merely because pay scale of the

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5 Cri.Appln. No.385/2001

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applicant was equivalent to that of Joint Secretary,

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that could not be the criteria for the purpose of

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coming to the conclusion that the applicant was of

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the level of the Joint Secretary. He then invited

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my attention the letter written by K. Natrajan,
Under Secretary of the Government of India to the
CBI dated 28th June, 2010 in which it was stated the
pay scale of Inspector General level/Joint Secretary

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though it was given to the applicant, in fact, he

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was entitled to the pay scale applicable to the DIG
level. It was further stated that BCAS had been

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advised to refix the pay of the applicant. The

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learned ASG also invited my attention to the Indian
Police Service (Pay) Rules, 2007 which were

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published by Government Notification dated 21st
February, 2008. He invited my attention to the Sub-
Rules 7, 8 of Rule 6 of the said Rules and submitted

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that in view of the clear provisions of the said
Sub-Rules, the proforma promotion given to a officer

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on deputation remained in abeyance and the benefit
would be given after he was reverted to his own

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6 Cri.Appln. No.385/2001

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cadre and could be counted for the purpose of

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initial fixation of pay and increments subject to

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certain conditions laid down in Rule 8. It was

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further pointed out that even in the Office

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Memorandum of April 2000 on which reliance was
placed by the applicant, Rule 8.2 clearly provides
that an option was given to officers who were sent

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on deputation by the Central Government either to
revert back to their cadre within a period of two
months after the option was given to them to avail
promotion in the parent cadre. It was, therefore,
submitted that the said Office Memorandum which was

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also of the Central Government interpreted that
promotion of the applicant was kept in abeyance and

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that he had opted to revert back to his parent post

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to claim promotion in his own cadre. It was then

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submitted that in the application itself, the
applicant had stated that he was empanelled as
Inspector General and as such, even according to the

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applicant, there was no specific statement that he
was a full-fledged Inspector General of Police. In

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7 Cri.Appln. No.385/2001

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support of his submission regarding equivalence
regarding the pay scale, he relied on two judgments

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of the Apex Court, first judgment in the case of

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S.I. Rooplal and another vs. Lt.Governor through
Chief Secretary, Delhi and others, reported in AIR

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2000 Supreme Court 594 and secondly, judgment in the

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case of State of Karnataka & Anr. vs. Pastor P.

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Raju, reported in AIR 2006 Supreme Court 2825. It

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was then contended that the annexures to the

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affidavit-in-reply filed to the CBI�s application by

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the applicant herein could not be relied upon,

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firstly, because the said letter was written by the

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Director of Administration to the Inspector of

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Police, CBI by a person who was junior to the

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applicant. Secondly, it was submitted that there was

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inherent inconsistency in the said letter regarding

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the post which was held by the applicant. Secondly,

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it was submitted that the letter at page 28 which

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was annexed by the applicant to his affidavit-in-

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reply was also written by a Director, Pragya R.
Srivastava, dated 14th June, 2010. It was urged that

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8 Cri.Appln. No.385/2001

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she was also junior in rank to the applicant. It was

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then contended that the Note 3 which is a

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Notification dated 27th September, 2008 also would

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not apply to the applicant since it clearly
mentioned appointment on non-functional post of any
officer of the State or joint cadre after he was

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posted or sent on deputation by the Central

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Government. It was then urged that the letter dated
13th October, 2008 only fixed the pay scale of the
applicant, it did not mention that he was appointed
as IGP. He, therefore, urged that no reliance could

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be placed on the said letter. He further urged that

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in fact, now the mistake which was committed was
rectified and his pay scale was scaled down in view
of letter which was written by K. Natrajan, Under
Secretary to the Government of Maharashtra.

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7In rejoinder, Shri Mundargi, learned Senior

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Counsel for the applicant submitted that in fact,

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the applicant had duly repatriated to his parent
cadre and he was posted as IGP and he was granted

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9 Cri.Appln. No.385/2001

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the same pay scale. He submitted that the entire

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controversy regarding the post occupied by the
applicant had cropped after he had filed this
criminal application in this court and in the letter
dated 28th June, 2010 written by K. Natrajan for the
reply given on the same date to an inquiry made by
the Under Secretary to the Government of Maharashtra
which was annexed at page 4 of the said affidavit-
in-reply filed by the CBI.

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8On the merits of the case, the learned ASG
submitted that the applicant has been given free

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tickets to the tune of Rs.71 lakhs and he had

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travelled along with his family on non-official tour

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as a result, he received amount to the tune of Rs.71

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lakhs. He also submitted that the applicant was not
entitled to stay in a 5-Star Hotel and his tickets

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were not to be paid by the Airlines and the
investigation which was done by the CBI indicated
that he had taken the benefits from the Airlines. It
was urged that at this stage when there was dispute

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10 Cri.Appln. No.385/2001

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regarding the post which was held by the applicant,
this Court should not interfere and stay the

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investigation while exercising inherent jurisdiction
under Section 482 of the Cr.P.C.

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9After having heard both the learned Counsel
at length, in my view, prima facie there is
sufficient material on record to indicate that the
applicant does appear to be an Officer occupying the

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post of the level of Joint Secretary. It has to be

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noted here that Section 6A of the said Act was
incorporated in the provisions of the said Act and
the protection was sought to be given to the persons

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who are of the level of Joint Secretary and above in

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order to ensure that high ranking officers of the
Government of India are not prosecuted with a
malafide intention or on account of other rivalries

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in the department. There are number of instances
where persons from various State and Central cadre

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are sent on deputation to various Corporations,
Government Offices and other post of the Central

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Cri.Appln. No.385/2001

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Government. There are no clear-cut Rules, at least

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from the material which was shown to me, which
indicate that the manner in which the promotions are
to be effected in the cases of persons who are sent
on deputation. The rules do indicate that in order

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to ensure that the promotional prospects of an

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officer who is sent on deputation are not to be
affected, in that case either he has an option of
reverting back or of claiming non-function or
proforma promotion. The applicant admittedly as of
today is receiving pay scale of Joint Secretary.

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Prior to the filing of the complaint, there was no
dispute regarding the post which was occupied by him
and after he was being treated as an Officer
belonging to the cadre of IGP. Even now after his
reversion, he has been reverted as IGP where he has
taken charge in parent scale and the same salary is

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being given to him. The subsequent correspondence
after the application was filed by the applicant in
this court reveals that now the controversy is
sought to be raised regarding his post. Therefore,

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12 Cri.Appln. No.385/2001

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in my view, it will not be possible to accept the
contention of the learned ASG that the applicant
does not belong to the level of Joint Secretary and
on this issue, therefore, both the parties will be
given further opportunity to file additional reply
and the matter will be heard further at length after
granting rule.

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10However, the fact remains that since this
controversy is not yet fully resolved regarding the
actual post occupying by the applicant at the time
when he was on deputation with the Ministry of Civil
Aviation and since allegations are made regarding
misconduct and frittering away public money, in my
view, it would be appropriate if the Investigating
Officer is permitted to carry on his investigation.

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The applicantshallco-operatewiththe
Investigating Officer and shall report to the
Investigating Officer as and when called. The
Investigating Officer, however, shall give him 48
hours notice before calling him for interrogation.

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13 Cri.Appln. No.385/2001

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However, it is clarified that the applicant shall
not be arrested at this stage. The Investigating
Officer may collect other information and
investigate the case further. However, he shall not
file the chargesheet. In view of this, the
application filed for vacating the ad-interim relief
is partly allowed in the aforesaid terms.

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11The learned ASG submits that he needs about
2-3 months time to complete the investigation. It is
clarified that the said investigation shall be
without prejudice to the rights of the applicant and
further orders passed by this Court.

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Central Bureau of Investigation v. Manoj Malaviya and Anr.

Case brief

What is this about?

What did the court decide?

Central Bureau of Investigation v. Manoj Malaviya and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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