Thread by @barandbench

#BombayHighCourt to hear the plea of former #MumbaiPolice commissioner #parambirsingh assailing preliminary inquiries initiated against him by the #MaharashtraGovernment.

Hearing before Bench of Justices SS Shinde and NJ Jamadar.

@MumbaiPolice
@CMOMaharashtra

The same bench will also hear Singh’s plea seeking to quash the FIR registered against him under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Sr Adv Mahesh Jethmalani to appear for Singh.
Sr Adv Darius Khambata to appear for the State government.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

@JethmalaniM

Khambatta begins his submissions.

Khambatta: I have serious objections to the maintainability.
This complaint is by Anup Dange. With respect to this complaint, a preliminary enquiry was launched by the state. The investigation with DGP of Maharashtra Sanjay Pandey.

#BombayHC

Khambatta: According to the petitioner there were certain conversations with Pandey, and hence he ought to have been removed from the investigation.

However later Pandey recused from the investigation.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambatta: Affidavit of June 2021 filed by Maharashtra government - we have stated that the enquires and the investigations are transferred away from Pandey.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambatta: So in a sense this petition has come to an end. But Singh wants to pursue.. The gravamen of the charge in the petition was that the DGP has been directed to initiate a preliminary enquiry against Singh in terms of the provisions in the Service rules.

#BombayHighCourt

Khambatta: Prayer is to quash this FIR by Dange and to transfer the investigation to the CBI.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata refers to the Administrative Tribunal Act - Section 14.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata: IF Singh has any grievance then it would squarely fall within Section 14(1)(b).

Section 28 excludes all courts except the Supreme Court from hearing grievances under this Act.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata: The issues that the petitioner is raising are squarely covered by the Act.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata refers to the judgment of L Chandra Kumar (1997) - indiankanoon.org/doc/1152518/

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata: The SC has categorically held that it will not be open for litigants to approach the High Court directly without approaching the tribunals even if there is a challenge to the vires.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata is now reading judgment in Kendriya Vidyalaya Sanghathan (2002) - indiankanoon.org/doc/1389496/

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata: These pronouncements go further than the doctrine of alternate remedy.
They are pronouncement of law - that HC will not entertain if the tribunal can cover those cases.
Breach of service regulations is challenged in a 226 petition in this case.

#BombayHighCourt

Court: After new enquiry has been appointed, has enquiry started?

Khambata: Yes I believe so, Mr Yagnik will be able to give detailed update.

APP JP Yagnik submits that he will take instructions and let the Court know.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata: There is some broad and vague claim that there is some malafide in this investigation because of the letter against Deshmukh.
This is strange - the Param Bir Singh defence.
This allegation made, does not immunize you from investigations or allegations.

Khambata: This will be used as a defence, that you first make allegations and then you will be immunised.
This FIR of Dange was before the letter written to the CM.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata: Vendetta and malafide are hefty words for quashing FIR.
The SC has held that these are not grounds for quashing FIR.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata reads judgment of Sheonandan Paswan from SC - indiankanoon.org/doc/1141543/

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Khambata then follows up with Bhajan lal judgment - indiankanoon.org/doc/1033637/

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Court: In your case there is no investiagtion. What you have initiated is an enquiry.

Khambata: Be that as it may, even if it would have been an investigation, this is not a ground to quash it.

Court: This is departmental enquiry, not crime registered against him.

Khambata: There are two enquiries.

Court: Bhajan Lal says that just because there is maladies, the investigation cannot be quashed.

Khambata: Yes, even more so with the enquiry.

#BombayHighCourt

Khambata: And this petition objects to Pandey investigating, who has recused himself. So really nothing remains in the petition except of this maintainability.

#BombayHighCourt

Khambata: On the maladies, the fact that the complaint is lodged in Feb 2021, it is long before the letter sent. So this is a complete bogus case to create a cloud to stop legitimate enquiries.

#BombayHighCourt

Sr Adv Navroz Seervai appearing for Pandey states that he has only 3 points to add.

He starts with the definition of service matter under Section 3(q) of the Administrative Tribunal Act.

@NHSeervai

Seervai: It is almost impossible for the petitioner to get out of this clause.

#BombayHighCourt

Seervai: I am only supplementing the arguments of my learned friend.
I have a Kolkata HC judgment, but I don’t waste my lords time on this judgment.

#BombayHighCourt

Seervai: Exfacie this matter is not maintainable. There is a complete, adequate, equally efficacious remedy available to the petitioner before my lords. And therefore in supplement and adopting my friends arguments.

#BombayHighCourt

Seervai: On behalf of my client, who recused himself within 24 hours of being served with the petition. There is nothing that remains in the petition.

#BombayHighCourt

Court: There are some allegations against Pandey.

Seervai: We had discussed and kept the affidavit ready if for any reason this petition is to be heard on merits.
I will be candid, my client has an impeccable reputation and I will prove that this petition is to besmirch that.

Seervai: If Jethmalani has convinced my lords to hear the matter on merits then I may be given time to respond.

Court: If a party approaches the Tribunal to challenge the malafides, why can’t the Tribunal go into that?

Seervai: It can. Due respect, it is a rhetorical question!

Seervai: If Tribunal can go into constitutional validity, it can surely go into malafides!

Seervai and Khambata conclude their submissions.

@NHSeervai

Adv SR Ganbavale appearing for Anup Dange submits that his FIR cannot be quashed without hearing him and hence the intervention.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Court asks Khambata to respond.

Khambata: That is the second part which I had argued.
That the FIR was registered in February.

Court: And you said that the complaint was filed before Singh’s letter.

Khambata: Yes.

#BombayHighCourt

Khambata: And this shows the abuse of process this petition is. That just because allegations are made, Singh gets immunity.

#BombayHighCourt

Khambata: The allegations in the FIR are grave, and it is a fairly detailed complaint. It is extraordinarily serious offences made out. No one is above the law. Not even the former Mumbai police commissioner.

#BombayHighCourt

Court: Last date of hearing during pendency of the petition, whether the petitioner had approached the SC? And if yes, are any orders passed?

#BombayHighCourt

Khambata: This is a sordid affair. For sometime there was parallel proceeding between High Court and Supreme Court. There was oral assurance of amendment but we do not know if it was done.

#BombayHighCourt

Khambata: Eventually the Supreme Court dismissed the SLP. With some strong observations which was reported in the newspapers, may not be in the order.

barandbench.com/news/litigatio…

Khambata: But I do not need to go this far, this is just on the maintainability.

#BombayHighCourt #parambirsingh #MaharashtraGovernment

Court asks if ASG is appearing.

ASG Anil Singh states that he has joined the meeting as CBI is made a party.

ASG: Now it is for Mr. Khambata and Mr. Jethmalani to argue in the matter on the maintainability. I will address the Court on merits if it comes to that.

#BombayHC

Since Jethmalani is yet to join the meeting (as he is the RS session) the Court rises for 15mins break.

#BombayHighCourt

Hearing begins.

Jethmalani begins his submissions.

#BombayHighCourt

Jethmalani: They have limited themselves to the maintainability issues. But before that I want to point out the prayers.

#BombayHighCourt

Jethmalani: Direct CBI to enquire and investigate into the investigation against Singh.

The first remedy is to approach CAT - whether it is malafide.. I have no quarrel with that proposition.

#BombayHighCourt

Jethmalani: Before Milords decide that, what needs to be decided is what the Maharashtra government has done. Were these two enquiries administrative? If they are then I am out on maintainability. If they are not, then the maintainability argument goes.

#BombayHighCourt

Jethmalani points out that he had been served with a letter from the Home Ministry which then had Anil Deshmukh as the Minister.

#BombayHighCourt

Jethmalani: Both these orders of April 23 are issued hastily without application of mind.
It is obvious from the circumstances that it was issued out of confusion and vendetta.
Because Singh who was to quietly go off to the DGP was forced to do it…

@JethmalaniM

Jethmalani: Because Deshmukh made allegations in public.
And that is partially evident in the April order.

Jethmalani reads the letter written to Deshmukh.

#BombayHighCourt

Jethmalani: The motivation and reason for the April 21 order shows why this order was issued.

The second question arises that some police officers were involved in the Antilla incident, the question arose how did Singh fail to control his subordinates.

#BombayHighCourt

Jethmalani: IF there is some crime committed by the subordinates, how is that a matter of administrative enquiry?

#BombayHighCourt

Jethmalani: First Deshmukh tarnished Singh’s image in public with his interview, by stating that Singh’s letter tarnished government’s image.

#BombayHighCourt

Jethmalani: To say that the sitting home minister is guilty to extort money from liquor with evidence to the CM, does not tarnish the image of the government, it tarnishes image of the corrupt individual.

#BombayHighCourt

Jethmalani: Notice Pandey is DGP of the State, the highest police officer in the State.
You appoint DGP for both enquiries. You call this a preliminary enquiry which is a criminal law term. How is this an administrative enquiry?

#BombayHighCourt

Jethmalani: The maintainability point of going to CAT does not arise.

#BombayHighCourt

Reading Dange’s complaint, Jethmalani submits that had it been an administrative enquiry, there was no need to invoke Section 32 of the CrPC.

#BombayHighCourt

Jethmalani submits that the State Home Ministry’s order initiating the enquiry against him was in retaliation to Singh’s letter who he termed a “whistleblower”.

#BombayHighCourt

Jethmalani: The continuance of Sanjay Pandey as DGP shows the State is protecting Sanjay Pandey, which shows that what Pandey is saying on the tapes is true because a responsible, free from blame state will distance themselves from Pandey.

Jethmalani: The fact that there are allegations against the State government shows that they have no defence to those and hence they are protecting Pandey.

#BombayHighCourt

Jethmalani: Khambata raised a point that the enquiry is vitiated but Pandey has been removed from the enquiry so the grievance is redressed… It is not as simple as that.

#BombayHighCourt

Jethmalani: These ostensibly sound arguments hide reality. Hence Sanjay Pandey is so important to this court.
Please see his transcripts.

#BombayHighCourt

Jethmalani: Pandey initiated the investigation on the State’s word. Which is why he is refraining from filing an affidavit.

#BombayHighCourt

Jethmalani: What is happening in Maharashtra I do not want to be rhetorical. There is an extortion racket going on in the State by the Home Minister, there is money for transfer and posting.

#BombayHighCourt

Khambata: I would suggest my friend to refrain from making any submissions in regard to the allegations.. These are unproven..

Jethmalani: This is proven..

Khambata: No they will be proved after the investigation.

Jethmalani: I was talking prima facie. But I can see your reluctance to go into the details in this plea...

Khambata: I am more than happy to go into the details of the FIR against your client!

#BombayHighCourt

Jethmalani: Th enquiry was to try and find a way - first by persuasion to withdraw the vital letter (which was fulcrum of all HC and SC proceedings).
Pandey offered me a defence that I may say that the prequel to my letter was a grave and sudden provocation.

#BombayHighCourt

Jethmalani: How is the State of Maharashtra tolerating him as a DGP unless they do not want to let him go...

#BombayHighCourt

Jethmalani (on Singh’s meeting with Pandey), where Pandey suggested that Singh withdraws his letter.

It was a suggestion that withdraw your letter and there will be no cases. Don’t withdraw, and there will be cases.

#BombayHighCourt

Court to continue hearing the matter post lunch break.

Hearing to continue at 2.30 pm.

#BombayHighCourt

Hearing resumes.

Jethmalani continues reading the transcripts of the conversations between Pandey and Singh.

#BombayHighCourt

Jethmalani: The fact of the matter is, we have got rid of Pandey. We are not saying he is a judge in his own cause or some personal animosity…
The argument is not vitiated because of this. This has been brought at the behest of the State government.

#BombayHighCourt

Jethmalani: The fact is that the enquiry stands vitiated and because he has acted at the instance of the State government.

#BombayHighCourt

Jethmalani: This tape record shows the maladies against Singh by the State.

#BombayHighCourt

Jethmalani: The contents are proved by non-denial and subsequent circumstances.
No summons has been issued to us. Nothing is on record.

Court: But APP said that there is no response from petitioner in the matter.

Jethmalani: I am stating on instructions.

Court: What we propose to do is, we will close this for maintainability. After we decide on this, then we will hear further…

#BombayHighCourt

Khambata: I just need a few minutes to respond on the maintainability.

The enquiry initiated by Chakrabarty does not mention Section 32.

Khambata: Secondly, his case in the petition is that this enquiry is administrative enquiry and should not include Section 32.. the exact opposite of what he has argued!

#BombayHighCourt

Khambata: The petitioner in his petition, sworn on oath, states that the enquiry is an administration, how then, can Section 32 be invoked.
The case is crystal clear that it is administrative enquiry, departmental enquiry.

That is the only case before your lordships.

Khambata: If that is the case, then the Supreme Court has said in several judgments that the writ court cannot go into it!
It is on a higher footing than what is put forth by Mr. Seervai.
This is an interdiction from the SC, not just an alternate remedy..

Khambata: My learned friend relied on conversations, and my submission is at this stage on maintainability, that was not unnecessary.

He is trying to take your lordships into the transcript without going through investigation.

#BombayHighCourt

Khambata: As Mr. Seervai submitted that if for any reason, the merits in the case have to be heard..

Court: Just five minutes back we opined that, whatever, we will decide on maintainability and then proceed to hear.

#BombayHighCourt

Jethmalani: Another submission is that the new officers which are now investigating are junior in rank to me..

#BombayHighCourt

Khambata: this is not a ground to challenge the enquiry.

Court states that the submissions are noted. Matter closed for order on maintainability.

#BombayHighCourt