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Supreme Court Dismiss Centre's Plea To Recall Direction For CBI Probe Into Hindustan Zinc Ltd Disinvestment
Mehal Jain
7 Feb 2022 5:14 PM IST
Recording that Solicitor General Tushar Mehta seeks to withdraw the same to pursue other remedies in law, including a review, the Supreme Court on Monday dismissed as withdrawn the Centre's plea for recall of its direction for registration of a CBI Regular Case for probe into the decision for 26% stake sale in Hindustan Zinc Ltd. in 2002.The Supreme Court had in November 2021 ruled that the...
Recording that Solicitor General Tushar Mehta seeks to withdraw the same to pursue other remedies in law, including a review, the Supreme Court on Monday dismissed as withdrawn the Centre's plea for recall of its direction for registration of a CBI Regular Case for probe into the decision for 26% stake sale in Hindustan Zinc Ltd. in 2002.
The Supreme Court had in November 2021 ruled that the Union of India may disinvest its residual shareholding of 29.5% in HZL. The Court also directed that a prima facie case for registration of Regular Case by the CBI as regards the illegalities in the March, 2002 disinvestment of 26% shares is concerned, and ordered the CBI to do the needful.
The Union of India had filed a Miscellaneous Application for recall thereafter claiming that the foundational facts presented by the CBI before the Court, based on which the aforesaid direction was passed, are factually incorrect. Incidentally, it was the SG who had appeared for the CBI in the original proceedings.
On Monday, at the outset, Justice D. Y. Chandrachud put to the SG, "Take the case of seniority where the Court said 'A' should get seniority over 'B' without hearing 'B'. There, I can understand 'B' coming and saying 'you superseded me without hearing me, so recall your order'. That is a recall application. Here, you are saying that the Court found sufficient material for registration of a regular case, but I will now establish before you that there was no sufficient material for the registration of a regular case, and that in fact, the material is to the contrary? That cannot be the basis of a recall application"
The SG sought to make a brief submission to indicate how the MA for recall by the UOI is "necessitated, justified and maintainable"
"Why we have taken a considered decision in law to move under this caption is because your lordships are a court of record. If the ultimate conclusion of your lordships is based on the facts which are false, which of course were presented by one of the parties, namely, CBI, then it is not only the right or jurisdiction or power of the court but the duty of the court to recall that order, if the very foundational facts are found to be false. The foundational facts unfortunately presented by the CBI are factually incorrect", began the SG.
"But this is an application by the government of India. You are saying the foundational facts of the CBI were incorrect?", asked Justice Chandrachud.
When Advocate Prashant Bhushan, for the petitioner in the original proceedings, indicated that it was the SG who was appearing for the CBI then, the SG commented, "I have taken an oath that I would ignore his unpleasant interruptions"
The SG continued to submit that the government of India has said on affidavit that the foundational facts presented by the CBI are incorrect- "Every language that the CBI informs you is not correct- they said that the decision of disinvesting 26% instead of 25% was done on the basis of a senior government official's note dated 27 August 2000 without further details or reasoning. The document that I am placing now is to the effect that this was not a single officer's decision. This emanated as a proposal which was scrutinised at four different levels and not individual levels. It was a result of a collective decision making process. It goes to the Empowered Committee of Secretaries- approximately 10 to 12 secretaries would apply their minds to the information on record. They give reasons why it should be 26 and not 25. Thereafter, it goes to the Core Group of Disinvestment- a higher group, again a collective decision-making with signatures of everyone. And ultimately, it is approved by the Cabinet. The Cabinet takes the inputs from all the departments. Actually, the CBI informed your lordships wrongly that it was at the behest of one individual"
"This is what happens when intricate commercial processes are subjected to investigating officers…", submitted the SG.
Justice Chandrachud observed, "The CBI produce the whole file before us. We studied the file. It is not that they just made a statement before us. We looked at every noting in the file"
The SG replied that "unfortunately", the facts placed on record now are not part of the CBI file. At this, Justice Chandrachud remarked, "The fact that the Cabinet had approved of this is part of the CBI file itself"
The judge continued to observe, "There are 3 heads in the judgment. Under 'Irregularities in the valuation of 26 per cent equity for disinvestment' is the fact, that we have ourselves said, that the value of the mines was not included in the valuation of the assets"
"The CBI did not tell you that these mines are non-functioning mines", pressed the SG.
"It is always the potential. It makes no difference. It is an asset to the company", said Justice Chandrachud.
"And it is not that Mr. Bhushan has given these figures. These are your files, the government files!", continued the judge.
"Please don't take this application as an attempt to show that the Court committed some mistake. My attempt is that the CBI gave some facts which are not correct. And for each and every sentence, I can show the true facts. I am in a position to show that whatever is recorded in the CBI file is factually incorrect", urged the SG
To this, Justice Chandrachud said, "That is a matter of investigation…you have to follow the remedy
Justice Chandrachud continued to observe, "The difficulty is that the government is a party before us, the CBI is a party before us. The CBI hands over a file, then the government has no objection to the CBI handing over the file even if the file contains underlying material with the investigating agency. On the basis of what is shown to us, we say register a regular case. The government today says to us that CBI bungled in terms of what it has recorded as part of the investigation process in the file. At the least, this cannot be an MA"
"You can withdraw this and then whatever the remedy you want to follow, you can pursue", said the judge.
Then the bench proceeded to pass the following order- "SG Tushar Mehta seeks permission to withdraw the Miscellaneous Application with liberty to pursue the remedies in law, including a review. The MA is accordingly dismissed as withdrawn"
The SG had insisted that the Court "put the words in (his) mouth" in recording in the order that he is withdrawing the MA with liberty to pursue other remedies including a review.
Case Title: National Confederation Of Officers Association Of Central Public Sector Enterprises v. Union Of India
Click Here To Read/Download Order
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