Union Of India & Ors vs Ramesh Gandhi

2. An FIR came to be registered on 15th November, 2000 in the Delhi Special Police Establishment, Ranchi Branch in Crime No. RC 13(A)/2000 (R) under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against nine accused of whom the first 2 accused was the Coal Controller at the relevant point of time. The next five accused were the officers of Central Coalfields Limited (hereinafter `CCL'. for short), which is a subsidiary of Coal India Limited (hereinafter `CIL', for short). Accused No.9 is a Private Limited Company (hereinafter `private company', for short) and accused Nos. 7 and 8 are the members of the said private company.

4. The substance of the accusation in the FIR is that all the accused entered into a criminal conspiracy to confer an illegal and unjust benefit on the above-mentioned private company. In the process, the accused, "intentionally and dishonestly" suppressed certain relevant and crucial facts (in the various cases filed before the Calcutta High Court and also this Court to which the accused were parties), which resulted in orders being passed both by this Court as well as by the High Court favourable to the private company.

Name and address of the accused : (1) Shri P.N. Tiwary, the then Coal Controller, Calcutta (retd.) (2) Shri R.P. Srivastava, the then G.M. Sales, CCL, Ranchi (retd.) (3) Shri S.K. Srivastava, G.M. (Sales), CCL, Ranchi (4) Shri B. Akla, CMD, CCL, Ranchi (5) Shri K.M. Singh, the then G.M., Argada Area, CCL (6) Shri Sudarshan Singh, the then Area Sales Officer Argada Area, CCL, presently Superintending Engineer (E&M), N.K. Area, CCL (7) Shri Ramesh Gandhi, Prop. M/s. Continental Transport Constn. Corpn., (CTCC), Dhanbad (Pvt).

(8) Shri Mahesh Gandhi of M/s. CTCC, Dhanbad (Pvt.) (9) M/s. Continental Transport Construction Corpn. (CTCC), Dhanbad (Pvt.) Action taken : Regular case registered and investigation taken up. Investigation Officer: Shri A. Prasad, DSP, CBI, SPE, Ranchi 4 INFORMATION A reliable information has been received to the effect that Shri P.N. Tiwary, the then Coal Controller (since retd.), Calcutta, Shri R.P. Srivastava, the then G.M.(Sales), CCL, Ranchi (since retd.), Shri S.K. Srivastava, the then GM.(Sales), CCL, Ranchi, Shri B. Akla, the then Chief of Marketing, Coal India Limited, Calcutta, Director (Technical) and (Projects and Planning), CCL and presently Chairman-cum-Managing Director, Central Coalfields Ltd. (CCL), Ranchi, Shri K.M. Singh, the then G.M., Argada Area, CCL, Shri Sudarshan Singh, the then Area Sales Officer, Argada Area, CCL (presently Superintending Engineer (E&M), N.K. Area, CCL, Shri Ramesh Gandhi of M/s. Continental Transport Construction Corpn., Dhanbad and Shri Mahesh Gandhi of M/s. Continental Transport Construction Corpn., Dhanbad entered into a criminal conspiracy among themselves and in furtherance of the said conspiracy the accused public servants abused their respective official positions, in as much as that they helped the private firm namely M/s. CTCC by way of illegally and unauthorisedly transferring different grades of coal/slurry to the private firm (CTCC) and also by way of intentionally and dishonestly suppressing relevant facts before the Hon'ble Courts and thereby helped M/s.CTCC in getting favourable orders for release of steam coal which was meant to be supplied only to the actual users and not to the traders like M/s. CTCC. As a result of the aforesaid overt acts of the accused public servants as mentioned above, M/s. CTCC, illegally obtained the supply of the Steam Coal at a cheaper rate applicable to the actual users, even after the lapse of the period stipulated by the Hon'ble Supreme Court, causing wrongful loss to the tune of Rs.90,00,000/- approximately to the CCL. It has been alleged that Coal India Limited (CIL), Calcutta vide NIT (Notice Inviting Tender) dated 9/15-1-91 offered sale of existing stock of following categories of coal under "BULK SALE SCHEME" on as is where is basis.

In response to the aforesaid NIT, M/s. CTCC, offered to buy following quantity/quality of coal at the prescribed rate. M/s. CTCC was allotted the entire quantity w.e.f. 25.7.91 which was to be lifted within 90 days after depositing the cost in advance.

It is further alleged that M/s. CTCC deposited the cost only for 1500 MTs of Middlings Grade `F' and 13276 MT of Slurry Grade `D' against the offered quantity as mentioned in the foregoing para. M/s. CTCC had lifted this quantity of 1500 MT only and was thus to be penalised by way of forfeiture of security/invoking of Bank Guarantee as per terms and conditions of the NIT. However, the concerned accused public servants in pursuance to a criminal conspiracy, had shown favours to M/s. CTCC by not taking action subsequently as above.

In furtherance of the conspiracy, M/s. CTCC requested the CIL in April 1993 to transfer the remaining quantity of 88500 MT of Middlings Grade `F' to Dirty Slurry Grade `F' and the same was approved on 28.5.93 in complete violation of terms and conditions of the NIT.

Accused Ramesh Gandhi of M/s. CTCC in accordance with Shri P.N. Tiwary, the then Coal Controller, Calcutta and the accused officials of the CCL/CIL submitted a representation to accused Shri P.N. Tiwary requesting transfer of the left over quantity of 165724 MT of Slurry Grade `D' to Dirty Slurry Grade `F'. Shri P.N. Tiwari, in his capacity as Coal Controller, was supposed to allow the transfer of grade of coal after following due procedure, but he, in utter violation of the terms and condition of the NIT, approved the same and intimated to the CMD, CCL, Ranchi, accordingly.

It is further alleged that the Coal India Limited, Calcutta floated another NIT under "LIBERALISED SALES SCHEME II (LSS-II)", with same terms and conditions as of Bulk Sale Scheme, and M/s. CTCC offered to purchase, under this scheme, following quantities of coal from the collieries mentioned against each.

It is further alleged that M/s. CTCC was allotted 32,000 MT of Steam Coal Grade `B' from URIMARI Colliery and 5750 MT of Washery Grade `D' Coal from Jarangdih Colliery vide letter dated 7.4.93 and 21.4.93 respectively of Coal India Limited, Calcutta. As against the aforesaid allotted quantity M/s.CTCC deposited the amount equal only to the value of 3000 MT each and lifted the same from the respective sources.

Steam Coal of the aforesaid three sources namely Sirka, Religara and Giddi `C' was to be allotted, as per the policy of the CIL/CCL, exclusively to the industrial consumers (Actual users) and not to the traders like M/s. CTCC at all, during the relevant period. Also, the rate of Steam Coal applicable to the industrial Consumers (Actual users) was approximately Rs.200/- per MT less than the rate fixed for the traders and M/s. CTCC being the traders, was not authorised to get the Steam Coal at the rate which was applicable to the industrial consumers (actual users).

Simultaneously, accused Ramesh Gandhi of M/s. CTCC approached accused P.N. Tiwary, the then Coal Controller, as well, on the same issue, who in turn, in criminal conspiracy with M/s. 7 CTCC and accused public servants wrote a letter dated 12.4.94 to the CMD, CCL, Ranchi, inter alia, directing him to accede to the request of M/s. CTCC, without ascertaining from the CCL, Ranchi, the stock position and the past conduct of M/s. CTCC of not remitting the cost of entire offered quantity of coal in question against both the aforesaid schemes namely `Bulk Sale' and `LSS-II' within the stipulated period as prescribed and also the fact that M/s. CTCC was not authorised to get the Steam Coal which was meant for Industrial Units (Actual Users).

Even before the aforesaid letter dated 12.4.94 of accused P.N. Tiwary, was received in the office of the CMD, CCL, Ranchi, accused Ramesh Gandhi of M/s. CTCC moved to the Hon'ble High Court, Calcutta by suppressing the relevant facts of the matter and secured an order dated 18.4.94 vide which CMD, CCL, Ranchi was directed to comply with the directions of the Coal Controller issued vide letter dated 12.4.94. The accused public servants of CIL/CCL also did not place the correct facts before the Hon'ble High Court, Calcutta in the matter.

(ii) Steam Coal of the aforesaid collieries was not meant for traders like M/s. CTCC.

M/s. CTCC, however, did not deposit the value of the Coal to be lifted again, on some pretext or the other as they were not in a position to sale such a huge quantity of coal at monopolistic price, those days, since the buyers were getting coal directly from the Coal India Limited and other sources. Also neither the accused Shri B. Akla, the then Chief of Marketing CIL nor Shri R.P. Shrivastava, the then General Manager (Sales and Marketing), CCL, Ranchi asked M/s. CTCC to deposit the coal value and to lift the coal.

At this stage also, the actual facts relating to the failure on the part of M/s. CTCC in lifting the coal after depositing the coal value in advance within the stipulated period as per terms and conditions of the NITs, were not brought to the notice of the Hon'ble Supreme Court and simply the authority of the Coal Controller was challenged.

On receipt of the orders of the Hon'ble Supreme Court, it was rightly commented upon by an officer of Sales and Marketing Department of the CCL, Ranchi on 5.4.97 to the effect that merely challenging authority of the Coal Controller had not served any purpose. He opined that all the relevant points regarding failure on the part of M/s. CTCC should be raised by preferring an appeal against the impugned order. Accused Shri B. Akla by that time had joined as Director (Projects and Planning) CCL, Ranchi and had perused the aforesaid noting on 5.4.97 itself, but he had returned the file on 16.4.97 without any comment with an advice to discuss the matter with the Panel Advocate of CCL/CIL.

M/s. CTCC also filed a contempt petition simultaneously in the Hon'ble Supreme Court against the then CMD, CCL, Ranchi and others in the matter. Hearing of both the petitions was fixed on 9.5.97 and the Hon'ble Supreme Court issued a show cause notice to the concerned officers of CCL. Hearing on the modification petition as mentioned above could not be taken up.

As per the commitment of the CCL, the Hon'ble Supreme Court vide its order dated 14.7.97, directed the CCL to complete the supply of the entire quantity of coal allotted to M/s. CTCC within 20 months positively at the rate of 10,000 MT per month and at the modified price fixed by the CIL w.e.f. 1.4.97.

On receipt of the aforesaid order, the Dealing Officer of the Sales and Marketing Division of CCL, Ranchi, initiated a proposal suggesting that penalty as per terms and conditions of NIT of "Bulk Sale" and "LSS-II" Schemes should be decided in case M/s. CTCC to notify truck wise allotment on a weekly basis, to ensure timely placement of trucks by the party and to maintain a record to assess the quantity lifted by them within a particular period of time.

Thereafter, on 20.9.97, a meeting was held which was attended to by Shri B. Akla, Director (Technical) and (P&P), Shri A.K. Mitra, Director (Finance), R.R. Menon, G.M.(Sales and Marketing), CCL and Ramesh Gandhi of M/s. CTCC and it was mutually agreed upon that M/s. CTCC would submit a Bank Guarantee at the rate of Rs.30/- per MT for the unlifted quantity of coal, which could not be lifted due to the failure on the part of M/s. CTCC and to allow twenty months time for lifting the entire quantity 10 as per the direction of the Hon'ble Supreme Court. This period was to be calculated from the actual date of commencement of lifting or 1st November, 1997, whichever was earlier. It was also specified that M/s. CTCC would pay @ Rs.896/- per MT for the Steam Coal Grade `B' at the notified rate w.e.f. 1.4.97.

As per the aforesaid decision M/s. CTCC was to lift the entire quantity of coal by June 1999, but against 2.8 lakh MT of Steam Coal, M/s. CTCC lifted only about 30000 MT of coal from the aforesaid three collieries upto June 1999 and thus the remaininig quantity of 2.5 lakhs MT of coal was not to be allowed to be lifted by M/s. CTCC. However, in violation of the Supreme Court's order M/s. CTCC was allowed by Shri R.P. Shrivastava, the then General Manager (Sales), CCL, Ranchi to lift another 15000 MT of Steam Coal between June 1999 to October 1999. As per the direction of Hon'ble Supreme Court, the lifting of Coal was to commence from November 1997 but it was delayed by M/s. CTCC in connivance with the officers of CCL, on one pretext or the other upto March 1998, till the peak season started. This was obviously with a view to avoid the lean season.

After the expiry of 20 months, accused Shri S.K. Shrivastava the then General Manager (Sales), CCL, Ranchi and Shri Mahesh Gandhi of M/s. CTCC entered into an unwarranted agreement (MOU) on 23.3.2000, vide which M./s. CTCC would be allowed to lift coal according to its own will as no time frame was fixed for lifting the same. M/s. CTCC was also given a chance for lifting coal from Bokaro, Barkakana, Sayal and Dhuri Area, in addition to the aforesaid areas was in high demand and was fetching the highest premium. In the MOU, no provision was kept for imposing any penalty for failure on the part of M/s. CTCC in lifting of Coal. This was done with a view of allow M/s. CTCC to lift coal during premium months.

The rate at which M/s. CTCC allowed to lift the coal was applicable to the industrial consumers/actual users and not to the traders like M/s. CTCC. The rate applicable to the trader was Rs.200/- (approximately per MT) more.

The aforesaid acts of commissions and omissions on the part of S/Shri P.N. Tiwary, the then Coal Controller, Calcutta (retired), R.P. Shrivastava, the then General Manager (Sales), CCL, Ranchi (retd.), S.K. Srivastava, G.M. (Sales) CCL, Ranchi, B. Akla, CMD, CCL, Ranchi, K.M. Singh, the then G.M. Argada Area, CCL, Sudarshan Singh, the then Area Sales Officer, Argada Area, presently superintending engineer (E&M), NK Area, CCL, Ramesh Gandhi of M/s. Continental Transport Construction Corporation (CTCC) Dhanbad (Pvt.) reveal that the public servants and the private persons alongwith their firm, as mentioned above, entered into a criminal conspiracy and in pursuance of the same violated the terms and conditions of the NITs issued in respect of sale of coal under "Bulk Sale" and "LSS-II" Schemes, wilfully suppressed relevant facts before the Hon'ble High Court, Calcutta and Hon'ble Supreme Court of India and subsequently in violation of Hon'ble Supreme Court's order allowed the private party namely M/s. CTCC to lift an additional quantity of 45000 MT of coal at the rate applicable to the industrial consumers/actual users and thereby caused huge wrongful loss to the tune of Rs.90 lakhs approximately to the CCL, Ranchi and corresponding wrongful gain to the private party and themselves. Shri P.N. Tiwary, the then Coal Controller, Calcutta also connived with the private party and accused public servants by fraudulently and dishonestly issuing directions to the CMD, CCL, Ranchi in favour of the private party.

D also with Grade-F Dirty Slurry and reiterated that in order to avoid possible malpractices of lifting of Slurry against orders of Dirty Slurry, lifting of both the products concurrently was not possible. On September 20, 1993, the petitioners submitted a representation to the Coal Controller requesting him to direct CCL to transfer their allotment of 1,65,724 MT of Slurry Grade-D to equivalent quantity of Dirty slurry Grade-F which was abundantly available at the Gidi Washery. On January 31, 1994 the Coal Controller gave a direction to the Chairman-cum-Managing Director, CCL, Ranchi, to transfer 1,65,724 MT of Grade-D Slurry to equivalent quantity of Grade-F Slurry in Gidi Washery. Since the direction of the Coal Controller was not implemented by CCL, the petitioners moved the Calcutta High Court by filing a Writ Petition and the High Court, by order dated February 10, 1994, directed the appellants to act in terms of Coal Controller's letter dated January 31, 1994. Thereupon by letter dated February 28, 1994, CCL confirmed the transfer of 1,65,724 MT of Grade-D Slurry to Grade-F Slurry of Gidi Washery. The case of the petitioners is that with effect from April 1, 1994, CCL changed the grade of Dirty Slurry of Gidi Washery from Grade-F to Grade-E for the year 1994-95 and increased its price by about Rs. 85 per MT. The petitioners submitted a representation to the Coal Controller on April 2, 1994 in that regard. On April 7, 1994, the petitioners wrote a letter to the General Manager (Argada area) of CCL, wherein they stated that in view of the difficulties mentioned in the said letter, it would not be possible for them to lift the Dirty Slurry allotted to them from Gidi Washery and they sought transfer of their allotments of Dirty Slurry to Steam Coal from Sirka/Gidi- C/Religara collieries. By his letter dated April 8, 1994 addressed to the General Manager (S&M), CCL, the General Manager (Argada area), forwarded the said letter of the petitioners for favourable consideration. On April 9, 1994 the petitioners submitted a representation to the Coal Controller requesting him to transfer of then-allotted quantity of Dirty Slurry remaining to be booked and lifted against allotment and the entire quantity of recent allotment of 1,65,724 MT of Dirty Slurry for release of equivalent quantity of Steam Coal by road from Sirka/Gidi-C/Religara collieries. The Coal Controller, sent a communication dated April 12, 1994 to the Chairman-cum-Managing Director, CCL, wherein, after taking 16 note of the representation dated April 7, 1994 submitted by the petitioners to the General Manager (Argada area) and the letter from the General Manager, Argada area to the General Manager (Sales)/CCL dated April 8, 1994, he stated :

cum-Managing Director of CCL were not being implemented by CCL, the petitioners on April 18, 1994, filed two Writ Petitions (Matters Nos. 940-941 of 1994) in the Calcutta High Court. Both the Writ Petitions were disposed of by a learned single Judge (Mitra J.) by order dated April 18, 1994 whereby the Chairman- cum-Managing Director of CCL was directed to act in terms of the communications dated April 12, 1994 sent by the Coal Controller within a fortnight from the date. This order was passed by the learned single Judge without issuing notice to the appellants and by directing that a copy of the Writ Petition be served upon Mrs. A. Quraishi, Advocate as she generally appears on behalf of the Chairman-cum-Managing Director of CCL and the Chairman-cum- Managing Director of CCL 'was directed to regularise her appointment in the matter. The said order of the learned single Judge was, however, set aside in appeal by the Division Bench of the High Court by order June 6, 1994 and the matter was remitted for reconsideration on merits. Thereafter, the matter was considered by Samaresh Banerjee J. who, after issuing notice to the parties, by his judgment dated April 6, 1995, allowed both the Writ Petitions filed by the petitioners and directed the appellants herein, who were respondents in the Writ Petitions, to implement the orders of the Coal Controller dated April 12, 1994 forthwith. Letters Patent Appeals filed by the appellants against the said judgment of the learned single Judge have been dismissed by the Division Bench of the High Court (K.C. Agarwal CJ. and Tarun Chatterjee J.) by the impugned judgment dated October 31, 1995. Hence these appeals. "

The Hon'ble Supreme Court after hearing both the accused parties, dismissed both the SLPs on 18.3.97 with an observation that the Coal Controller had got the jurisdiction to pass such orders.

After the expiry of stipulated period of 20 months, M/s. CTCC was allowed by the accused public servants of CCL to lift extra quantity of 45000 MT of steam coal, at the rate applicable to the actual users and thereby CCL Ranchi was put to a wrongful loss to the tune of Rs.90 lakhs (Rs. Ninty Lakhs) approximately.

This R.C. is therefore registered and investigation is taken up.

14. Hence, this appeal.

Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order. 27

30. For all the above reasons, we are of the opinion that the judgment under appeal cannot be sustained and the same is required to be set aside and we, accordingly, set aside the same. The appeal stands allowed.

Dated: 14th November, 2011.