1 Cri.Appln. No.385/2001 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 385 OF 2010 IN CRIMINAL APPLICATION NO. 2796 OF 2010 Central Bureau of Investigation ...Applicant vs. Manoj Malviya & Anr. ...Respondents 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. WITH CRIMINAL APPLICATION NO. 2796 OF 2010 Manoj S/o. Giridhar Malaviya ...Applicant vs. State of Maharashtra & Anr. ...Respondents 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. 2 Cri.Appln. No.385/2001 CORAM : V.M. KANADE, J. DATED : JULY 28, 2010 P.C. :- 1 Heard Shri Mundargi, learned Senior Counsel appearing on behalf of the applicant and Shri Khambatta, learned Additional Solicitor General appearing on behalf of the respondents. 2 By order dated 18th June, 2010, ad-interim 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. 3 An application was filed by the CBI vide Application No.385/2010 for vacating the ad-interim relief granted by this court on 18th June, 2010. It was submitted by the learned ASG that on the said date since the instructions were yet to be received by the respondents Counsel, time was taken for the 3 Cri.Appln. No.385/2001 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. 4 Shri Mundargi, learned Senior Counsel appearing on behalf of the applicant firstly submitted that the various documents which are annexed to the application and the affidavit-in- 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 4 Cri.Appln. No.385/2001 Inspector General of Police (DIG) and in 2005, he 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 scale of Joint Secretary or equivalent to Joint Secretary. He invited my attention to letter dated 13th October, 2008 annexed at page 46 to the application filed by the CBI. 5 It was then urged that as a result of the 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. 6 On the other hand, the learned ASG submitted that merely because pay scale of the 5 Cri.Appln. No.385/2001 applicant was equivalent to that of Joint Secretary, that could not be the criteria for the purpose of coming to the conclusion that the applicant was of the level of the Joint Secretary. He then invited 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 though it was given to the applicant, in fact, he was entitled to the pay scale applicable to the DIG level. It was further stated that BCAS had been advised to refix the pay of the applicant. The learned ASG also invited my attention to the Indian Police Service (Pay) Rules, 2007 which were 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 that in view of the clear provisions of the said Sub-Rules, the proforma promotion given to a officer on deputation remained in abeyance and the benefit would be given after he was reverted to his own 6 Cri.Appln. No.385/2001 cadre and could be counted for the purpose of initial fixation of pay and increments subject to certain conditions laid down in Rule 8. It was further pointed out that even in the Office 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 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 also of the Central Government interpreted that promotion of the applicant was kept in abeyance and that he had opted to revert back to his parent post to claim promotion in his own cadre. It was then submitted that in the application itself, the applicant had stated that he was empanelled as Inspector General and as such, even according to the applicant, there was no specific statement that he was a full-fledged Inspector General of Police. In 7 Cri.Appln. No.385/2001 support of his submission regarding equivalence regarding the pay scale, he relied on two judgments of the Apex Court, first judgment in the case of S.I. Rooplal and another vs. Lt.Governor through Chief Secretary, Delhi and others, reported in AIR 2000 Supreme Court 594 and secondly, judgment in the case of State of Karnataka & Anr. vs. Pastor P. Raju, reported in AIR 2006 Supreme Court 2825. It was then contended that the annexures to the affidavit-in-reply filed to the CBI s application by the applicant herein could not be relied upon, firstly, because the said letter was written by the Director of Administration to the Inspector of Police, CBI by a person who was junior to the applicant. Secondly, it was submitted that there was inherent inconsistency in the said letter regarding the post which was held by the applicant. Secondly, it was submitted that the letter at page 28 which was annexed by the applicant to his affidavit-in- reply was also written by a Director, Pragya R. Srivastava, dated 14th June, 2010. It was urged that 8 Cri.Appln. No.385/2001 she was also junior in rank to the applicant. It was then contended that the Note 3 which is a Notification dated 27th September, 2008 also would 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 posted or sent on deputation by the Central 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 be placed on the said letter. He further urged that 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. 7 In rejoinder, Shri Mundargi, learned Senior Counsel for the applicant submitted that in fact, the applicant had duly repatriated to his parent cadre and he was posted as IGP and he was granted 9 Cri.Appln. No.385/2001 the same pay scale. He submitted that the entire 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. 8 On the merits of the case, the learned ASG submitted that the applicant has been given free tickets to the tune of Rs.71 lakhs and he had travelled along with his family on non-official tour as a result, he received amount to the tune of Rs.71 lakhs. He also submitted that the applicant was not entitled to stay in a 5-Star Hotel and his tickets 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 10 Cri.Appln. No.385/2001 regarding the post which was held by the applicant, this Court should not interfere and stay the investigation while exercising inherent jurisdiction under Section 482 of the Cr.P.C. 9 After 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 post of the level of Joint Secretary. It has to be 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 who are of the level of Joint Secretary and above in 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 in the department. There are number of instances where persons from various State and Central cadre are sent on deputation to various Corporations, Government Offices and other post of the Central 11 Cri.Appln. No.385/2001 Government. There are no clear-cut Rules, at least 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 to ensure that the promotional prospects of an 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. 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 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, 12 Cri.Appln. No.385/2001 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. 10 However, 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. The applicant shall co-operate with the 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. 13 Cri.Appln. No.385/2001 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. 11 The 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. 12 S.O. to 4th October, 2010. (V.M. KANADE, J.)