1 [CASE NUMBER] HIGH COURT OF MADHYA PRADESH : JABALPUR BEFORE HON'BLE SHRI JUSTICE [ENTITY] Writ Petition No.20003/2014 Krishna Kumar Mishra versus [ENTITY] and others Petitioner-in-person. Shri [ENTITY], learned Assistant Solicitor General for respondent-[ENTITY]. Shri [ENTITY], learned Government Advocate for the respondent-[ENTITY] and its functionaries. ORDER
(26.5.2017) Being aggrieved of the alleged unfair treatment meted out to the petitioner while employed as Scientific Assistant/D in Raja Ramanna Centre for Advanced Technology, Department of Atomic Energy, Govt. of India at Indore which, as alleged, led him to tender resignation on 21.7.2004 which was accepted vide office order-dated 9.9.2004, the petitioner has filed this petition seeking multifarious reliefs, viz :
[CASE NUMBER]
(i) to direct respondents to produce the entire record relating to petitioner for kind perusal of this Hon'ble Court.
(ii) to direct respondent No.3 to initiate the CBI enquiry into the matters raised by the petitioner (especially in case of mysterious theft/ disappearance of petitioner's Lock-in-amplifier, interception of telephones/e-mails/postal letters/ bugging of domestic conversation of the petitioner, suicide of Lt. Shri [ENTITY], suicide of Lt. [ENTITY], suicide of Shri [ENTITY] and other financial irregularities prevailing in the [ENTITY], Indore) in the interest of justice.
(iii) to direct respondent No.2 and respondent No.9 to pay full compensation (salary+other full allowances etc) to petitioner for 10 years (since 9.9.2004 to till date) as the petitioner was forced indirectly to resign due to sequence of conspiracies at [ENTITY] Indore against him organized by respondents No.9, 10 and 12 and even after leaving [ENTITY] Indore these respondents did not allow him to work anywhere 3
[CASE NUMBER] else indirectly. And, this Hon'ble Court may kindly be pleased to direct respondent No.2 to take back the petitioner in his previous job (as regards other conditions which are applicable to the petitioner if permitted he will be having full rights all conditions applicable to him and will be treated as he has not resigned i.e. continuity in service for the purpose of promotion leave etc) and get posted at BARC Mumbai in appropriate group keeping in view his research work experience (if Hon'ble Court may deem fit, as the petitioner is very scared in joining at [ENTITY] Indore keeping in view his past experience). Here, Hon'ble Court may consider the fact that going back into the previous job as junior researcher in CAE-GOI is not a condition at all from the petitioner's side, it is upto Hon'ble Court only if it finds reasonable and thinks that it is in the interest of [ENTITY] as well as in the interest of petitioner, keeping in view the excellent contribution made by petitioner in the field of Laser-based Fusion Programme of the Nation.
[CASE NUMBER]
(iv) to direct GOI for the technical audit of various projects of the RRACT Indore which have been taken up since last 10 years and also to make provisions for such regular technical audits of various scientific projects of [ENTITY], Indore.
(v) to direct the GOI to remove the respondent No.9 from the post of Director [ENTITY] from immediate effect so that may more lives and careers may be saved of the juniors/ subordinates in [ENTITY] Indore and also to direct for the case study upon respondent No.9 in some highly reputed organization like Indian Institute of Management, as he is really peculiar personality he enjoy harassing his opposing sub-ordinates and can go up to any limits (even by fabricating false/fake stories/cases and evidence).
(vi) Any other relief which this Hon'ble Court may deem fit and proper on the basis of above mentioned facts and grounds of the case.
2. To start with, Relief No.(iii) is taken up first as the same relates to petitioner's resignation which he tendered on 21.7.2004 and was accepted on 9.9.2004. The relief which 5
[CASE NUMBER] centres around and relates to petitioner's resignation from service, this Court finds sufficient force in the contention raised by the respondent as to maintainability of the petition.
That, being a Central Govt. Employee and the Relief No.(iii) relates to service matter under [SECTION] of the [ACT] and the bar created vide [SECTION] of 1985 Act and the decision in [PRECEDENT] wherein it is held :
99. In view of the reasoning adopted by us, we hold that [SECTION] and [SECTION], to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under [SECTION] and [SECTION] of the [ACT], are unconstitutional. [SECTION] of the Act and the "exclusion of jurisdiction"
clauses in all other legislations enacted under the aegis of [SECTION] and [SECTION] would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under [SECTION] and upon the Supreme Court under [SECTION] of the [ACT] is part of the inviolable basic structure of our [ACT]. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by 6
[CASE NUMBER] [SECTION] and [SECTION] of the [ACT]. The Tribunals created under [SECTION] and [SECTION] of the [ACT] are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. [SECTION] of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
(Emphasis supplied)
- this Court refrain from entertaining the writ petition so far as it relates to the issue relating to petitioner's service.
3. Coming to the Relief No.(v); whereby, the petitioner seeks removal of respondent No.9, it is informed that said officer has retired. In view whereof, relief sought to remove 7
[CASE NUMBER] respondent No.9 cannot be granted. As to direction for case study of respondent No.9 by some highly reputed organization like Indian Institute of Management, the petitioner since fails to establish a legal right in him to seek a mandamus for a case study of an individual, the relief cannot be granted in a writ petition under [SECTION] of the [ACT].
Furthermore, the nature of relief sought against respondent No.9 without any statutory foundation, if granted, would tantamount to a breach of personal liberty of the respondent No.9 which will violative of [SECTION] of the [ACT].
4. In respect of relief sought for direction to Govt. of India for technical audit of various projects of the [ENTITY] Indore and also to make provisions for such regular technical audits of various scientific projects of [ENTITY] Indore. Though many an allegations have been made by drawing inferences but there is no cogent material on record, except a paper clipping at Page 650 which cannot be taken to have any evidentiary value, to substantiate the contention that there is no internal auditing in the organization like [ENTITY]. Respondents No.1, 2 and 9 to 12 in Paragraph 39 and 40 of the counter affidavit 8
[CASE NUMBER] filed on 15.6.2015 has categorically countered the contention on behalf of petitioner stating :
"39. The petitioner is making wild allegations on the efficiency and achievements of the organization without any substantiation and is casting aspersions on the scientific community of the answering respondents Department. He is put to strict proof of the same. The Raja Ramanna Centre for Advanced Technology ([ENTITY]), Indore was founded in 1984 by the Department of Atomic Energy ([ENTITY]) for pursuit of R&D in the areas of Accelerators, Lasers and related technologies. Since then, the Centre has set up two synchrotron Radiation Sources : Indus-1 and Indus-2 which are national research facilities and may smaller accelerators for radiation processing applications. The Indus-1 and Indus-2 are now operating in round the clock shifts. These facilities are the only ones of its kind in the country. Many reputed institutions like Indian Institute of Science, IITs, ISRO, Various Universities are utilizing these facilities for research purposes. The Centre has excellent cryogenic facilities as well as state-of- the-art equipments for low temperature physics measurements. A variety of laser systems, particularly high power lasers, have been built and are being used for a wide range of applications.
[CASE NUMBER] These include gas lasers (like copper vapour lasers, CO2 lasers), solid state lasers (like diode pumped solid state lasers, semi-conductor lasers, high power lasers) for the studies in the areas like biomedical applications for lasers and laser-plasma interaction. The Centre also has long standing programmes in the areas of RF-superconductivity, low temperature physics, material science, cold atom physics, non-linear optics, opto-electronics, nano-science etc. The Centre has made important contributions in the construction and operation of Large Hadron Collider at CERN, Geneva, Switzerland.
40. Auditing of Govt. Departments and submitting report to the Parliament is coming under the routine duties of the CAG. Accordingly, CAG had done performance audit of the Department and had pointed out certain short comings. Remedial action has been taken to rectify these short-comings. "
5. As to Relief No.(ii) i.e. direction to respondent No.3 to initiate the CBI enquiry into the matters raised by the petitioner (especially in case of mysterious theft/ disappearance of petitioner's Lock-in-amplifier, interception of telephones/e-mails/postal letters/bugging of domestic 10
[CASE NUMBER] conversation of the petitioner, suicide of Lt. Shri [ENTITY], suicide of Lt. [ENTITY], suicide of Shri [ENTITY] and other financial irregularities prevailing in the [ENTITY], Indore).
Dwelling upon the said aspect, worth it would be, at this stage, to note decision rendered by the Supreme Court as to the circumstances which may warrant direction to CBI to undertake an investigation; in [PRECEDENT], it is held : -
68. Thus, having examined the rival contentions in the context of the [ACT]al Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in [SECTION] of the [ACT], are inherent and cannot be extinguished by any [ACT]al or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under [SECTION] has to be taken into account in determining whether or not it destroys the basic structure.
(ii) [SECTION] of the [ACT] in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in 11
[CASE NUMBER] its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under [SECTION] and on the High Courts under [SECTION] of the [ACT] the power of judicial review being an integral part of the basic structure of the [ACT], no Act of Parliament can exclude or curtail the powers of the [ACT]al Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the [ACT] embodied in [SECTION] and other parts of the [ACT]. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review 12
[CASE NUMBER] acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord [ENTITY], judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the [ACT] takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the [ACT] and provide remedy under [SECTION] and [SECTION], whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under [SECTION] or [SECTION] to uphold the [ACT] and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the [ACT] and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the judiciary under [SECTION] and [SECTION] of the [ACT].
(vi) If in terms of [SECTION] on the one hand and [SECTION] and [SECTION] on the other, an 13
[CASE NUMBER] investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the [ACT] itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under [SECTION] of the [ACT] cannot be taken away, curtailed or diluted by [SECTION] of the [ACT]. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by [SECTION] of the [ACT] on the powers of the Union, cannot be read as restriction on the powers of the [ACT]al Courts.
[CASE NUMBER] Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
70. Before parting with the case, we deem it necessary to emphasis that despite wide powers conferred by [SECTION] and [SECTION] of the [ACT], while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these [ACT]al powers.
The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases 15
[CASE NUMBER] and in the process lose its credibility and purpose with unsatisfactory investigations.
6. In the case at hand, it is borne out from the communication dated 25.9.2013 by Inspector General of Police, Indore Zone, Indore to Additional Director General of Police, Crime Investigation Department, Police Headquarters, Bhopal which being self-explanatory is reproduced hereunder :
d`i;k mijksDr layXu lanfHkZr i= dk voyksdu djus dk d"V djsa] ftlesa vkosnd Jh d`".k dqekj feJk c/o ikoZrh HkkxZo] fu0 [ksjs dh nsfou ekxZ] okMZ 24] Nrjiqj us muds dk;ZLFky lsaVj QkWj ,Mokal VSDuksyksth vkj-vkj-dSV dSEil bUnkSj ls ykWd bu ,EiyhQk;j ds xk;c gksus ds lEcU/k esa tkap djus gsrq vuqjks/k fd;k x;k gSA vkosnd }kjk dsUnzh; vUos"k.k C;wjksa ls mDr tkap djkus gsrq mYys[k fd;k x;k gSA izdj.k dsUnzh; laLFkku ls lEcfU/kr gS ,oa vkosnd dsUnzh; vUos"k.k C;wjksa ls tkap djkuk pkgrk gSA vr% esjs er esa bldh tkap dsUnzh; vUos"k.k C;wjksa ls djkbZ tkuk mfpr gksxkA
7. Another communication which is dated 30.8.2014 is brought on record, addressed to Dr. [ENTITY], Secretary, Department of Atomic Energy, Anushakti Bhavan, Chatrapati Shivaji Maharaj Marg, Mumbai by the Secretary, 16
[CASE NUMBER] Department of Home, Govt. of Madhya Pradesh, Bhopal which is in the following terms :
vkosnd Jh d`".k dqekj feJk] oSKkfud ds #i esa jktkjeUuk izkS|ksfxdh dsUnz bankSj esa o"kZ 1992 ls 2004 rd dk;Zjr jgsA orZeku esa lapkyuky;] dks"k ,oa ys[kk] e-iz- Hkksiky esa dk;Zjr gSaA lwphand1 esa nf'kZr layXu f'kdk;r i=ksa }kjk Jh feJk }kjk f'kdk;r dh gS fd laLFkk ds ofj"B oSKkfud vf/kdkjh vius in dk nq#i;ksx djrs gq, Hkz"Vkpkj esa fyIr gS ,oa v/khuLFkksa dks izrkfM r dj vkRegR;k ds fy, ck?; dj jgs gSaA 2- vkosnd }kjk eq[; #i ls laLFkk ds funs'kd Jh xqIrk dks in ls gVkus] Jh fr#ekyk] oSKkfud dh vkRegR;k dh tkap ,oa vU; ?kVukvksa izeq[k #i ls lu~ 2004 esa laLFkk ds dherh ykWd bu ,eyhQk;j midj.k ds xk;c gksus@pqjk;s tkus] [kk.Msdj ,oa Jh xqIrk ds fo#) viuk i{k j[ks tkus dk volj fn;s tkus] [ENTITY] Vsi djk;s tkus ,oa laLFkk esa ?kfVr vU; ?kVukvksa dh lh-ch-vkbZ- tkap djk;s tkus dh ekax dh gSA lwph & 2 esa nf'kZr laYkXu iqfyl eq[;ky; ls izkIr fjiksVZ vuqlkj Jh fr#ekyk }kjk vkRegR;k laca/kh ? kVuk dk exZ Fkkuk jktsUnz uxj esa 0 39@10 ij ntZ fd;k x;k FkkA tkap i'pkr vi00 208@10 /kkjk 306 dk izdj.k iathc) dj foospuk dh xbZA foospuk esa lk{; ds vHkko esa [kkRek 0 1@11] fnukad 05-01-2011 17
[CASE NUMBER] drk fd;k x;kA laLFkk dh dherh e'khu ftldh dher yxHkx ikap yk[k #i;s crkbZ xbZ gS] ds laca/k esa LkaLFkk ds vf/kdkfj;ksa }kjk fnukad 15-01-2005 dks Fkkuk jktsUnz uxj] bankSj esa vi0 0 36@2005] /kkjk 380 Hkk-n-fo- dk izdj.k iathc) djk;k x;kA eky eqfYte dh erkjlh dh xbZA irk ugha pyus ij izdj.k esa [kkRek 0 [SECTION]@05] fn- 08-04-2005 dks drk fd;k x;kA mDr laLFkk Hkkjr ljdkj] ijek.kq tkZ foHkkx dk vax gSA vr% vkosnd }kjk dh xbZ f'kdk;rsa lwph & 1 ,oa lwph & 2 esa n'kkZ, vuqlkj ewyr% layXu izLrqr djrs gq, funsZ'kkuqlkj vuqjks/k gS fd izdj.k esa leqfpr fu.kZ; ysrs gq, vkosnd dks dh xbZ dk;Zokgh ls voxr djkus dk d"V djsaA
8. These communications are brought on record by the [ENTITY] in reply to [CASE NUMBER] and [CASE NUMBER]. The said communications when read in the context to investigation carried out by the State Police and as reflected in the reply filed by respondents No.4 to 8 on 20.2.2015; wherefrom, it is borne out that after the article in question was stolen, an offence was registered vide [CASE NUMBER] against unknown person at Police Station Rajendra Nagar District Indore on 15.1.2005. That, closure report was filed before the Additional Chief Judicial Magistrate 18
[CASE NUMBER] on 28.4.2005; however, the Magistrate did not accept the closure report as the statement of petitioner and one [ENTITY] were not recorded. It is observed from the reply that the matter is still pending investigation and during pendency whereof, respective Authorities have entered into correspondence as is evident from the communications dated 25.9.2013 and 30.8.2014 referred to supra.
9. In this context, reference can also be had of an affidavit sworn in by Shri [ENTITY], Administrative Officer-III, Raja Ramanna Centre for Advanced Technology, Department of Atomic Energy, Indore on 14.1.2017; wherein, Paragraph 11, it is stated :
"11. Department of Atomic Energy, Mumbai had written a letter dated 29.5.2006 to Inspector General of Police, Madhya Pradesh to order reopening of the case in the context of the Police's decision to close the case, so as to trace the missing item by investigating the matter through State Intelligence Branch. Police investigation is a State subject and it is for the concerned Authority in the State Government of Madhya Pradesh to decide whether the case is to be handled by a Central Investigation Agency in order to arrive at the case's logical conclusion. The [ENTITY] (Respondent No.2) or [ENTITY] (respondents No.9 to 12) may not have any role in the decision of 19
[CASE NUMBER] Police/State government about further investigation by a Central agency."
10. In view of the correspondence entered into between the concerned Authorities and the affidavit sworn in by Shri [ENTITY], Administrative Officer-III, [ENTITY], gravity and seriousness of the crime which is subject matter of investigation cannot be ruled out and since the local Police is unable to investigate the crime effectively, this Court is of the considered opinion that the same deserves to be investigated by the Central Bureau of Investigation.
11. The Supreme Court in [PRECEDENT] has held -
"20. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be 20
[CASE NUMBER] answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor."
12. In the result, the petition is disposed of finally with a direction to the CBI to conduct the investigation in respect of [CASE NUMBER] registered at Police Station Rajendra Nagar, Indore.
13. All interlocutory applications stands disposed of.
([ENTITY]) JUDGE vinod