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Journalism of Courage
December 20: Indicting the state government for malafides, the Bombay High Court today ordered it to reinstate R H Mendonca as director-general of the Anti-Corruption Bureau from his current posting as managing director of the Maharashtra State Police Housing and Welfare Corporation Limited. It has struck down his transfer order.
The division bench of Justice A P Shah and Justice P V Kakade quashed and set aside the State government’s order of November 21, 2000 transferring Mendonca as well as the Central Administrative Tribunal (CAT) order of November 17, 2000 restoring S K Iyengar as DG (ACB). Mendonca had challenged his transfer before HC. The bench while remanding the matter to the CAT to take a decision has allowed the Mendonca to intervene before it. However the bench has stayed the operation of its order by four weeks to allow the State government to appeal before the Supreme Court.
The delivery of the order which commenced an hour before court time was adjourned to post-lunch to ascertain a point raised by Mendonca’s counsel V R Manohar that Deputy Chief Minister Chhagan Bhujbal had made a statement on December 14, 2000 on the floor of the Nagpur Legislature stating that the transfer was in keeping with CAT’s order. As certified copy of the minutes was not available, the affidavit containing this point was taken on record. Manohar also told the court that additional Chief Secretary who had taken a call from Bhujbal to implement the CAT’s order was incidently chairman of the (MSPHWCL). Earlier in his note, the officer said Bhujbal had asked him to implement the order as it was a judicial order and it would be legally challenged. The bench observed that the matter was not pursued thereafter. “The State for reasons known to it acquiesced to the order of the Tribunal. It is clear that apart from that there is nothing to show that the decision is in public interest or an administrativeexigency. The Tribunal was mislead.”
Earlier the bench came down heavily on the State government for obtaining a collusive order alongwith Iyengar.“It will be obvious that if the fact of posting of the petitioner to DG (ACB) was known to the Tribunal, it might not have issued directions for restoring Iyengar to the post of DG (ACB). A collusive order was obtained by suppressing facts before the Tribunal and which was the foundation for removing the petitioner.”
Further, the bench said that the manner in which the State governmentconducted itself during the proceedings before it “leaves no room for doubt about its mala fides”. It observed,“In these circumstances, it was obligatory on the part of the State government to inform the Tribunal of the subsequent events leading to the appointment of the petitioner on the post of DG (ACB).”
The bench said there is no satisfactory explanation about the failure to mention the appointment of Mendonca as DG (ACB) which was “the omission of a vital fact.” It refused to accept the explanation tendered by Joint Secretary (Home Department) that at that time they were only concerned with the two order’s challenged by Iyengar.“The affidavit which was also filed before us said that as commissioner of Mumbai he was not affected by the matter and therefore there was no occasion to make a reference about him. We are unable to accept the explanation given by State government.”
The bench also said the State and Iyengar’s preliminary objection against the maintainability of petition before HC puts a “premium” on the collusion or abuse of the process of court and it would generate a feeling that persons capable of manipulating the judicial process can get away with beneficial orders. The bench said though it cannot be of dispute that the litigant is required to approach a tribunal as court of first instance, however the petitioner had approached the court alleging fraud and collusion which directly affected him. Therefore it is a fit case for it to exercise under Article 226.
