High Court · 2009

Heard Mr DK Mishra, learned senior counsel for the appellant and Ms T Khro, lear ned State Counsel, Nagaland. The present appeal is preferred against a common judgment in WP( 2. C) Nos.67(K)/05 and 13(K)/05. The facts which led to filing of the said writ pet itions are as follows :- There is a govt company of the State of Nagaland which owned a s ugar mill in the State of Nagaland which was closed in the year 2001. On such cl osure the State of Nagaland and the seasonal employees of the said mill reached an understanding that the seasonal employees would be treated to have gone on vo luntary retirement. The terms of the understanding were reduced into writing. Su ch a settlement was approved by the Cabinet of the Govt of Nagaland on 30-5-2002 . The full factual details of the case may not be necessary for the present purp ose as the appellant is aggrieved only by certain observations made in the judgm ent under appeal. Eventually the State of Nagaland sanctioned an amount of Rs.1, 23,03,580/- The said amount was released by the Director of Industries and Comme rce, Nagaland by cheque No.331998 dated 23-4-04 drawn in the SBI, Lerie Branch, Kohima. The said cheque was drawn in favour of one Shri Shihovi Sumi. It was a b earer cheque which eventually came to be encashed on 26-5-04 allegedly by the ab ove mentioned Shri Shihovi Sumi. The petitioners in the above mentioned two writ petitions allege 3. d that though the above mentioned amount is to be distributed to a number of emp loyees referred to earlier towards the amount due to each one of them under the Voluntary Retirement Scheme, a substantial portion of the amount was never distr ibuted, but each one of the employees were paid only a nominal amount. In substa nce a substantial portion of the above mentioned amount was misappropriated eith er by the drawee of the cheque personally or in collaboration with certa in others. The writ petitioners, therefore, prayed for appropriate di rections from this court including a direction for ordering direct payment of mo ney to each one of the employees. 4. During the course of pendency of the writ petition the learned J udge who heard the matter ordered an enquiry into the various allegations by the Vigilance Department of the State of Nagaland by order dated 25-4-07 which enqu iry was conducted. 5. When the matter came to be heard finally, the learned Judge on t he basis of the materials on record including the above referred vigilance repor t gave various directions, the details of which may not be necessary for the pre sent purpose, except to state that one of the directions is that there should be an investigation into the entire episode by the (cid:28)CBI (cid:29), in other words, the Delh i Special Police Establishment. One of the areas that was required to be investi gated is (cid:28)to ascertain whether any kick-back/pay-off was given to Government Off icers or to the Minister for release of Rs.1,23,03,580/-. (cid:29) 6. The appellant herein, who was the minister in-charge of Industri es and Commerce Deptt of the Govt of Nagaland, was neither a party by office nor by name to the above mentioned proceeding. Hence the present appeal.

7. Mr DK Mishra, learned senior counsel for the appellant submitted that as a matter of fact the CBI did register a crime and commenced investigati on of the crime on the basis of the above mentioned directions of this court. Th e learned counsel submitted that there are certain observations in the judgment under appeal which are likely to prejudicially affect the interest of the appell ant in the investigation undertaken by the CBI. The learned counsel pointed out that the observations at paragraph-10 and 24 of the judgment which are made agai nst the appellant herein without there being an opportunity to the appellant to meet the allegations are required to be expunged. To examine the tenability of t he submission made by the learned counsel we deem it appropriate to extract the relevant portion of the judgment under appeal which accordingly the appellant ar The defence of Visheke, Chairman of the ad hoc committee, is that the Di e prejudicial to the interest of the appellant. (cid:28)10. rector of Industries & Commerce had asked him to visit the office on 27/4/20004 to take the payment. However, before going to the office he received a telephoni c call from a member of NSCN(IM) (viz, Azheto) to meet him in the residence of S hri Khekiho, Minister of Industries and Commerce. It is also the case of the afo resaid respondent that when he arrived at the residence of the Minister along wi th the Secretary of the committee, he was told to go to the residence of one Vis heto, another member of the said organization. (cid:29) Coming to paragraph-24 of the judgment the learned counsel for t It is obvious from the above extracted portion of the judgment that ther e was no observation made by the court except narrating the stand taken by one o f the respondents. 8. he appellant referred to the following passage : - (cid:28)I also fail to understand as to what prevented the I.O. to interrogate the Mini ster whose name figured in the alleged involvement from the statements of few wi tnesses. As a whole I also find that the report has been submitted to this Court on the basis of the half-cooked investigation. The Vigilance Officer also appea rs to have submitted a vague report protecting and shielding the actual culprits involved in swindling of Government money including Government Officers. The I. O. has also totally side-tracked the role of the concerned Minister in the entir e scandal. (cid:29) r the appellant, is required to be expunged. The above extracted portion, according to the learned counsel fo We regret our inability to accept the submission for the followi ng reasons:- No doubt, the learned Judge by the judgment under appeal made ce rtain observations in the above extracted part of the judgment regarding the nat ure of the enquiry made by the Vigilance Deptt of the State of Nagaland. In the process the learned Judge also came to the conclusion that the vigilance enquiry was conducted in such a way as to totally sidetrack the role of the appellant h erein in the entire episode. It was an opinion formed by the learned Judge on th e basis of the materials before him regarding the nature of the enquiry conducte d by the vigilance. The learned Judge did not express any opinion regarding the involvement or otherwise of the appellant herein in the scandal but having regar d to the various factual allegations available on record the learned Judge was o f the opinion that the vigilance ought to have examined the involvement of the a ppellant, if any, in the scandal. Consequentially the learned Judge directed tha t an investigation by the CBI into the whole episode be made. The learned Judge also indicated broadly the areas into which the CBI is required to investigate a nd one of such areas is the role played by the present appellant including the f act whether any kick-back was received by the appellant herein. 9. In view of the conclusion of the learned Judge that the material s on record did necessarily call for an enquiry into the role played by the appe llant and the conclusion of the learned Judge that the vigilance enquiry conduct ed pursuant to an order of this court did not consider this aspect of the matter we do not find any illegality or impropriety in the direction given by the lear ned Judge for investigation of the crime by the CBI and more specifically in the context of the present appeal as to the role played by the appellant. In the circumstances we see no merits in the appeal. The appeal

10. is therefore dismissed. However, we make it clear that the CBI my not construe any one o 11. f the conclusions or observations made by this court as conclusive in the matter regarding the role played by the appellant herein and should proceed with the i nvestigation of the matter strictly in accordance with law.