Indian Government on Thursday faced yet another day of searching questions over the vigilance nod given to P J Thomas with the Supreme Court
holding that the CVC cannot be the final authority in giving clearance to an official facing corruption case.
The Court also said it would lay down guidelines for future appointment to the post of Central Vigilance Commissioner (CVC).
"CVC cannot be the final authority," a bench headed by Chief Justice S H Kapadia said while questioning the clearance given to Thomas by the CVC in 2007-08 for being appointed as
Secretary and subsequent empanelment for the post of CVC.
"CVC cannot say that the court might have applied its mind (while hearing the case) and can the Commission say there is no merit in the case while giving clearance to an officer," said the Bench, which also comprised justices K S
Radhakrishnan and Swatanter Kumar.
The remarks of the Bench came after submissions were made by Attorney General G E Vahanvati, who said there was "no stigma" if a chargesheeted officer is considered for the post
of CVC.
"The filing of a charge sheet is not a stigma," he said when the Bench asked him "does it not, in normal course, be a stigma when a chargesheet is filed against an officer".
Vahanvati made the submission while responding to various questions by the bench, which also sought his view on the criteria of impeccable integrity required for appointment
as Central Vigilance Commissioner.
"Impeccable integrity is an important requirement," he said.
However, when the Bench asked does the criterion of impeccable integrity apply when there is a stigma of chargesheet, the Attorney General said "this is an area of grey".
While Vahanvati was making the submissions, advocate Prashant Bhushan, appearing for the Centre for Public Interest litigation, which has challenged appointment of Thomas as CVC,
said various factors about the Palmolein import case were not before the CVC when it gave vigilance clearance to him.
The CVC had not taken into account the pending chargesheet, sanction for his prosecution by the state government, the case diary, the report of the committee of public undertaking in Kerala and the CAG report on the Palolein import while giving vigilance clearance to Thomas.
"The CVC gave clearance to Thomas only on the basis of the two-page note placed before it by the Department of Personnel and Training," he said.
At the outset when it was informed by the Attorney General that there were no guidelines or rules for appointment of CVC, the Bench said "for future appointment we would lay down guidelines that there should be some procedure".
The Bench stressed that the appointment has to be in accordance with the Vineet Narain case judgement which makes it clear that the CVC has to remain independent, impartial, free and fair and be uninfluenced by the political executive.
"The appointment has to be read or made in the light of the judgement in the Vineet Narain case and CVC Act. If there is some gap we will fill it up by our interpretation,"
the Bench said.
Vahanvati, who said no further inquiry was required once a person is appointed as Secretary on clearance by CVC, justified Thomas' appointment by saying that the vigilance
clearance given to him in 2007 was not challenged by anyone.
"Nobody ever challenged what CVC said. All these facts were placed before him (CVC)," he said in response to the question of the Bench that the details about the palmolein case was not put before the Commission.
He said there was a detailed office memo in 2005 dealing with the case in which the state government had said that the whole case has to be withdrawn.
However, the Bench said "totality of the circumstances has to be considered in the case".
The court also wanted to know if the CVC report on Thomas was placed before the committee headed by the Prime Minister, which went into the selection of CVC.
The Attorney General said "It is not required to be placed once empanelment is given. Once there is a CVC clearance and empanelment, it is difficult to hold another inquiry."
Strongly supporting the appointment of Thomas as CVC, Government said "the fact that the case is pending against him does not mean that he does not have impeccable integrity".
"It was legitimate to proceed on the basis that there was no impediment in the way of his appointment on the basis of the pending case which had been found to be without any substance," he said referring to the CVC clearance given to Thomas.
"It is well settled that the question of suitability of the candidate is squarely the domain of the appointing authority. The argument about suitability of the candidate cannot be raised in the judicial proceeding," he said.
However, this submission evoked sharp reaction from the Bench which said if there can be a judicial scrutiny of the amendments in the constitution how can it be that there cannot be judicial review of such appointments.
The court wanted to know that when 54 persons were empanelled for the post, then on what basis three names were shortlisted for consideration by a three-member committee
headed by the Prime Minister.
The Attorney General shot back that "it is well settled that in matters of preparation of the list or recommendations there is no requirement to record reasons".
He also said there is no need of "unanimity" in the three-member committee on the appointment of CVC and "it cannot be said that the Leader of Opposition, who is the
member of the committee in addition to PM and Home Minister, has a veto power".
He was referring to a dissent note given by Sushma Swaraj, who had said "I disagree".
Vahanvati said the criterion of an outstanding person with impeccable integrity has to be taken undoubtedly into the consideration for appointment as CVC.
The bench, however, said, that in the given case, the issue of chargesheet and sanction for prosecution of Thomas were not considered by the Personnel and Training ministry and
others.
The bench wanted to know if material facts were not considered, then what would be the position.
At this point, senior advocate K K Venugopal submitted that Thomas had never gone to court relating to the case.
"You cannot have it both ways. You cannot say the matter is pending in the Supreme Court and also that you have not gone to the court," the judges said.
The bench's remarks were in reference to a petition filed by former Kerala Chief Minister K Karunakaran opposing
his prosecution in the Palmolein import case.
Venugopal, who commenced arguments on behalf of Thomas, contended that he is a victim of a clash between two political parties.
The bench wanted to know from him if any independent disciplinary inquiry was conducted against him or not.
"Why there is no such inquiry in this case?" the bench asked referring to an apex court judgement.
Venugopal said empanelment was cleared by the CVC on the basis of a note prepared by the DoPT.
"When he is facing a charge under Section 120 B of the IPC, is it in the realm of the CVC to travel beyond the due process. How can CVC clear him?" the bench asked.
Venugopal said because of some political differences in the state, the case was filed in the Palmolein import.
"On the contrary, when you know there is a see-saw political battle, it is all the more necessary for the state government to order an independent inquiry into the case," the bench said.
Venugopal said the bureaucrat functions under the control of the state government but the power to remove vests with the Centre.
He said the state government has a right to prepare a charge sheet and give him an opportunity to be heard on the report as forwarded to the Centre, which on that basis conducts further inquiry and removes an officer.
The court, however, asked, "Is there any bar on the Central government to conduct its own inquiry without reference from the state?"
There is nothing in the rule to prevent Centre from conducting its own inquiry, the bench remarked.
When the hearing had commenced, the Bench wanted to know from the Attorney General whether the government maintains service file of bureaucrats, and if it does, then whether it was placed before the Committee.