350. Moreover under Rule 11 of the ToB Rules, 1961 it is the responsibility of the Secretary of the Ministry/Department to ensure that the requisite rules/regulations/procedures/processes etc. are duly observed while disposing of the business of the Department.
351. It is in the light of aforesaid rules that not only the minutes of 36th Screening Committee ought to have been recorded but the liability of accused MOC officers and especially that of A-4 H.C. Gupta, Secretary Coal is to be viewed and assessed.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 294 of 467
352. It is in pursuance to the aforesaid rules that Government of India constituted such an inter-departmental/inter-governmental body called Screening Committee so as to screen the proposals of various applicant companies by obtaining views/comments of all concerned at one single place and thereafter to make recommendations for allocation of various coal blocks in favour of different applicant companies in an objective and transparent manner. Admittedly the allocation of captive coal blocks to various private companies engaged in different end use projects impacted the business/functioning of various other Ministries/Departments and also that of State Governments.
353. It was in order to achieve the said objective only that MOC framed detailed guidelines and also brought them to the notice of public at large informing them as to in what manner the applications will be received in MOC or in what manner they shall be processed or how the inter-se priority amongst various applicant companies for any given coal block shall be decided.
354. Thus keeping in view the aforesaid objective for which the Screening Committee came to be constituted i.e. to screen the proposals received for captive mining in an objective and transparent manner and that too in consultation with all concerned Departments/Ministries and State Governments all the applicants were directed to submit their applications in five copies. Four copies thereof were accordingly sent to concerned Administrative Ministry(ies) and to the concerned State Government(s) beside also CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 295 of 467 sending one copy to CMPDIL. One copy of all the applications was however retained in MOC. Thus one set of applications of all such companies which were either having an existing steel plant or sponge iron plant or were proposing to establish a steel or sponge iron plant was sent to Ministry of Steel and not to Ministry of Power. Similarly one set of applications of all such companies who were either having an existing power plant or were proposing to establish a power project was sent to Ministry of power and not to Ministry of Steel or to any other Administrative Ministry. Similar was the situation qua the applications of companies having an existing cement plant or who were proposing to establish an end use project in cement sector. Copy of their applications was sent only to DIPP for comments/views and not to Ministry of Power or Steel. On similar lines, one copy of the applications was sent to only those State Governments where any given coal block was situated whose allocation was being sought by any given company or to state where existing end use plant of the company qua which allocation of a coal block was sought, was situated or any such end use plant was proposed to be established. In this manner the copy of applications of all the applicant companies was sent only to concerned State Governments and to concerned Administrative Ministries only and not to all State Governments or Administrative Ministries who were members of Screening Committee. However one copy of all applications was also sent to CMPDIL for its comments. In fact CMPDIL was also asked to make a compilation of all the information furnished by the applicant companies in their application forms and as was also there in soft CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 296 of 467 copy in the CD submitted by the applicant companies alongwith their applications.
355. Thus from the aforesaid circumstances it is clear that in the Screening Committee meetings, representatives of all the State Governments were not concerned with the application of any such company who was neither applying for any coal block situated in their state nor was proposing to have its end use project in their State. Admittedly applications of all the companies were not even sent to all the State Governments. Similarly a given Administrative Ministry was also not concerned with the applications of all such companies who were neither engaged nor were proposing to engage in any end use project relating to their Ministry. A natural consequence of the aforesaid scheme of arrangement was that the representatives of State Governments or Administrative Ministries in the Screening Committee meeting were not having any knowledge of the claims of any such applicant companies whose applications were not sent to them by MOC qua any factor much less as regard their financial strength or their technical capabilities or progress made by them towards establishing their end use project. They were also not aware of the recommendations/views of other State Governments or Administrative Ministries as regard various applicant companies for any given coal block, since the views/comments of all State Governments and Administrative Ministries were though available with MOC but were not circulated or exchanged amongst all the members. Thus the state Government representatives were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 297 of 467 accordingly not concerned with the recommendations made by the Screening Committee qua any coal block in favour of any applicant company as long as the said coal block was not situated in their state or the proposed end use project of the applicant company being recommended was not being established in their State. Similarly the representatives of Administrative Ministry(ies) were not concerned with any such recommendation as long as the end use project for which any coal block was recommended for allocation did not pertain to their Ministry.
356. If in the aforesaid circumstances the constitution and working of Screening Committee is seen and visualized then it emerges out as an irresistible and inevitable conclusion that the Screening Committee was though constituted as a large broad based Inter- Departmental and Inter-Governmental committee but in its actual functioning it was working as a conglomeration of various small Screening Committees. Thus in its actual working whenever discussion qua any given coal block used to take place in the Screening Committee meeting then applications of only those companies who had applied for the allocation of said coal block used to be considered. Officers of MOC however used to participate in the discussion qua every coal block and also qua each of the applicant company being the representatives of Nodal Ministry. Thus in any such discussion qua any given coal block, the views of representatives of the state Government where the coal block in question was situated were also important. Representatives of other CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 298 of 467 State Governments could participate only with respect to the claim of such applicant companies who intended to establish their end use project in their state. Similarly representatives of an Administrative Ministry used to participate in the discussion only qua such companies who were either already engaged or were proposing to engage in an end use project relating to the said Administrative Ministry.
357. The deposition of DW-6 Shiv Raj Singh, who participated in the Screening Committee meeting held on 03.07.08 clearly supports the aforesaid conclusion. It is important to understand the aforesaid working of Screening Committee since it will help in better understanding the claim raised by Ld. Counsels for the accused persons that the decisions made in the Screening Committee were unanimous in nature and especially because while signing the recommendation sheets the various members of Screening Committee did not raise any objection. Thus from the aforesaid nature of working of Screening Committee it becomes crystal clear that in the discussion which took place in the Screening Committee meeting held on 03.07.2008 qua any given coal block and while considering applications of various applicant companies who had applied for the said coal block under discussion only members of such smaller Screening Committee would have participated and none else.
358. It is in the light of aforesaid nature of constitution of Screening Committee that the working of 36th Screening Committee needs to be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 299 of 467 discussed and analysed.
(b) Working of 36th Screening Committee
359. Having discussed the composition of Screening Committee and its mandate or objective to be achieved, it will be now worthwhile to discuss the actual working of 36 th Screening Committee and that too with reference to its final meeting held on 03.07.08. I may also mention that my further discussion shall be primarily confined to the recommendation made by 36th Screening Committee in favour of A-1 M/s VMPL with respect to allocation of Moira-Madhujore coal block situated in the State of West Bengal, qua which the present case pertains to.
360. As regard discussion pertaining to allocation of Moira- Madhujore coal block the concerned parties in 36 th Screening Committee would have been thus the representatives of Ministry of Coal, representatives of Ministry of Steel, i.e. the Administrative Ministry for iron and steel projects, representatives of DIPP i.e. the administrative Ministry for cement projects, representative of Government of West Bengal where Moira-Madhujore coal block was situated and representatives of such State Governments where various applicant companies seeking allocation of Moira-Madhujore coal block were proposing to have their end use project for which allocation of captive coal block was sought. Accordingly representative of State of Bihar where the proposed integrated steel plant was to be established by A-1 M/s VMPL would have been an CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 300 of 467 important entity whose comments/views would have mattered and especially when the said company was finally recommended by the Screening Committee for allocation of a coal block for its proposed end use project situated in Bihar only. In fact minutes Ex. PW 1/L (Colly) (D-11) of 36th Screening Committee in para 14 mentions that while making recommendations the Screening Committee took into consideration the techno-economic feasibility of end use project, and also the status of preparedness to set up the end use project beside various other factors mentioned over there.
Certainly for ascertaining the techno-economic feasibility the project report of the proposed end use project would have been required and as regard status of preparedness to set up the end use project, the report/views/comments of the State Government where the end use project in question is proposed to be established. Undisputedly as regard the application of A-1 M/s VMPL, the end use project was proposed to be established in State of Bihar.
As regard technical aspects, the inputs of representatives of CIL and CMPDIL would have been also relevant.
361. Having so identified the concerned stakeholders whose views would have mattered in the discussion/deliberations of 36 th Screening Committee in arriving at a proper decision qua the companies to whom Moira-Madhujore coal block could be recommended for allocation, it will be now pertinent to discuss and analyse from the various documents placed and proved on record coupled with the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 301 of 467 deposition of various prosecution and defence witnesses as to the manner in which 36th Screening Committee arrived at its recommendation to recommend A-1 M/s VMPL as one of the six joint allocatee company for Moira-Madhujore coal block.
362. However before adverting further it also needs to be seen as to whether representative of State Government of Bihar was present in the Screening Committee meeting held on 03.07.2008 or not. Undisputedly to none of the meetings of 36 th Screening Committee, much less in the final meeting held on 03.07.08 where the recommendations of 36th Screening Committee were arrived at, the representative of State of Bihar was invited by MOC. Not only the files of MOC supports the aforesaid fact but PW-1 V.S. Rana, the then Under Secretary, MOC also states so. However the reason as to why representative of State Government of Bihar was never invited to attend any of the said meetings is not at all ascertainable from the files of MOC. Even no explanation has come forth during the course of entire trial as to why representative of Government of Bihar was not invited to any of the 36th Screening Committee meetings. The accused MOC officers have also not put-forth any explanation or reason in this regard much less any plausible reason except that it was for CA-1 Section officials led by PW-1 V.S. Rana to explain the same. It would be however pertinent to mention at this stage that one copy of application of A-1 M/s VMPL was however admittedly sent to Government of Bihar for seeking its comments/views vide letter dated 19/28.02.2007 Ex. PW 1/G-3 (D-17).
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 302 of 467
363. Ld. Counsels for the accused persons have rather referred to the deposition of PW-19 Insp. Rajbir Singh pointing out that in his cross-examination he stated that representative of State Government of Bihar was present in the Screening Committee meeting held on 03.07.08. He also stated that Sh. U.P. Singh, the then Joint Secretary, Ministry of Steel had told him during the course of investigation that probably in the year 2007, Sh. Phool Singh, the then Secretary Industries, Government of Bihar had attended some meeting of Screening Committee. It was thus submitted by Ld. Counsel for A-2 Vikash Patni that since vide letter dated 19.06.2007 Ex. PW 19/DX-5 [available at page 36 in file Ex. P-27 (Colly) (D-31)] Sh. Phool Singh on behalf of Government of Bihar had recommended allocation of a coal block in favour of M/s VMPL so it is clear that the claim of company M/s VMPL was duly supported by State Government of Bihar.
364. However before I discuss the issue as to whether representative of State Government of Bihar was present in the Screening Committee meeting held on 03.07.2008 or not or whether State Government of Bihar had supported the application of company M/s VMPL for allocation of a captive coal block so as to establish the proposed integrated steel plant or not, it will be appropriate to first refer to the relevant portion of the statement u/s 161 Cr.PC of Sh. U.P. Singh the then Joint Secretary, Ministry of Steel and the consequent investigation carried out by IO Insp. Rajbir Singh.
The relevant portion of the statement u/s 161 Cr.PC dated CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 303 of 467 15.04.2013 of Sh. U.P. Singh recorded by IO Insp. Rajbir Singh during the course of investigation read as under:
"Question: Whether representative from Government of Bihar attended the 36th Screening Committee meeting?
Answer. As I recall, Sh. Phool Singh, the then Commissioner & Secretary, Deptt. of Mines & Geology, Govt. of Bihar in the month of December 2007 (not remembered the exact date) as representative of the State of Bihar attended the 36 th Screening Committee meeting and suggested for allocation of a suitable coal block to the company M/s Vikash Metal and Power Ltd. He suggested that since the proposal for investment of this company is in the State of Bihar so the case may be considered and this is view of Govt. of Bihar to attract larger volume of Investment in State of Bihar. Normally the SC meetings were attended by the representative of State Govt. where the Coal Block located. There was no coal block in state of Bihar and Sh. Phool Singh was my senior officer in Bihar cadre. I know him since a long time."
365. Thus even though in his statement u/s 161 Cr.PC Sh. U.P. Singh stated that probably in December 2007, Sh. Phool Singh as a representative of Bihar had attended the Screening Committee meeting and had even suggested allocation of a suitable coal block in favour of M/s VMPL but Insp. Rajbir Singh while being cross- examined as PW-19 during the trial of present case also stated that when he examined Sh. Phool Singh in this regard then he had claimed ignorance as to whether he attended any such meeting or not and rather asked him to point out any attendance sheet, if signed by him. PW-19 Insp. Rajbir Singh also stated that though he had recorded statement of Sh. Phool Singh u/s 161 Cr.PC in this regard but the same was not filed in the Court alongwith report u/s 173 Cr.PC as he did not find it to be relevant.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 304 of 467
366. Strangely enough Insp. Rajbir Singh did not investigate the said issue regarding presence of representative of State Government of Bihar in any of the 36 th Screening Committee meeting any further or I may state that he deliberately chose to overlook the said issue as he neither placed on record the said statement u/s 161 Cr.PC of Sh. Phool Singh as part of his report u/s 173 Cr.PC nor he mentioned the fact that in none of the attendance sheets of 36 th Screening Committee meetings the name of Sh. Phool Singh was mentioned. In fact during the course of present trial also it is not the stand of anyone that Sh. Phool Singh, Secretary Industries Government of Bihar or any other officer of Government of Bihar was actually present in any of the meetings of 36th Screening Committee much less in the final meeting held on 03.07.08.
367. It is purely on the basis of lopsided investigation carried out by IO, Insp. Rajbir Singh and vague answers given by him in his deposition in the Court that Ld. Counsels for the accused MOC officers are trying to eke out benefit by arguing that as per prosecution witnesses, representative of State Government of Bihar was present in the Screening Committee meeting. No doubt not only the investigation conducted by IO Insp. Rajbir Singh as earlier also mentioned has not been above board but also his deposition in the Court in this regard is also not very forthcoming but what is important to note is that the argument being put-forth now on behalf of accused MOC officers is contrary to the records of the case i.e. the files of Ministry of Coal as stands proved on record. IO Inspector Rajbir CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 305 of 467 Singh has not cared to point out in his final report that in none of the two meetings of 36th Screening Committee held in the month of December, 2007 any discussion qua the claims of applicant companies took place as in both the meetings held on 07/08.12.2007, the representatives of various applicant companies merely made their presentations before the Screening Committee. More over company M/s VMPL admittedly made its presentation on 07.02.2008 only and not in the month of December 2007. IO Inspector Rajbir Singh thus did not even try to investigate the said issue at all much less faithfully or honestly. This again appears to be an act constituting dishonest and defective investigation with a view to file a closure report and thereby in the process helping the accused persons in getting absolved of all the charges.
368. At this stage, I may however also mention that Ld. Counsel Sh. Sushil Kumar Gupta for A-2 Vikash Patni has vehemently argued that recommendation of Government of Bihar in favour of M/s VMPL was indeed sent to MOC vide letter dated 19.06.07 Ex. PW 19/DX-5 [available at page 36 in file Ex. P-27 (Colly) (D-31)] under the signatures of Sh. Phool Singh, the then Secretary Industries, Govt of Bihar. A bare perusal of said letter dated 19.06.2007 Ex. PW 19/DX-5 sent by Sh. Phool Singh, Commissioner & Secretary, Department of Mines and Geology show that the said recommendation was only qua the proposed power project of capacity 2 X 250 MW to be established by M/s VMPL in the state of Bihar and not qua the proposed integrated steel plant which was being considered by 36 th Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 306 of 467 Committee. The said recommendation letter was accordingly qua the proceedings relating to 35th Screening Committee which was dealing with issues relating to allotment of coal blocks reserved for power sector and not qua 36 th Screening Committee which was dealing with allocation of coal blocks reserved for other end uses i.e. iron, steel/cement. It was for this reason only that the said letter was sent by Sh. Phool Singh on 19.06.2007 as 35 th Screening Committee was scheduled to meet on 20.06.2007 to consider various applications qua coal blocks reserved for power sector. In the earlier part of the judgment, I have however already discussed at length that A-1 M/s VMPL had in fact dropped the very proposal of establishing the integrated steel plant and had instead proposed to establish an integral power plant.
The fact thus remains that in 36 th Screening Committee no representative of Government of Bihar was present. The attendance sheets of 36 th Screening Committee clearly supports the said fact. At this stage it would be worthwhile to mention that alongwith the letter Ex. PW 1/G-3 (D-17) sent to Government of Bihar by MOC, applications of M/s VMPL as were received for allocation of a coal block for their proposed power project to be established in Jharkhand and in Bihar and another set of application for their proposed integrated steel plant to be also set up in Bihar were also sent.
[In fact at a later stage of the present judgment, I shall be also discussing that M/s VMPL had in fact been pursuing various CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 307 of 467 applications with MOC for allocation of captive coal blocks by initially stating that they intend to establish an integrated steel plant in State of Jharkhand or another application stating that they intend to establish an integrated power plant in State of Jharkhand/Bihar. Subsequently the company submitted yet another application whereby it represented that they intend to establish an integrated steel plant in State of Bihar. Accordingly the claim of M/s VMPL for various such projects came up for consideration before 34 th Screening Committee, 35th Screening Committee and as well as before 36th Screening Committee for one or the other such project(s). However in 34th Screening Committee and 35th Screening Committee, the company could not succeed but they were successful in obtaining recommendation for allocation of a captive coal block for their proposed integrated steel plant in State of Bihar from 36 th Screening Committee. In fact the aforesaid circumstances also explains the casual manner in which the application in the present matter was submitted by M/s VMPL by annexing documents pertaining to one or the other project with their present application simply with a view to fulfill the requirement of annexing the necessary/required documents with the applications lest the application may be rejected at the threshold itself for want of complete documents. There were documents annexed with the application in question over here like bar charts which did not co-relate with the claims made in the application. The company and its officers/directors were clearly well versed with the procedure being followed in MOC regarding allocation of captive coal blocks and thus simply exploited the same CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 308 of 467 to their benefit].
369. Thus in the aforesaid circumstances when the copy of application of M/s VMPL as was considered by 36 th Screening Committee was sent to State of Bihar for their comments then it is beyond comprehension as to why no notice of 36 th Screening Committee meetings was thereafter sent to Government of Bihar for attending its various meetings. It is also beyond comprehension as to why no comments of Government of Bihar were insisted upon by MOC if the same were not received till the time meetings were proposed to be held or even subsequently by 36 th Screening Committee when during the course of meeting it must have come to their notice that neither any representative of Government of Bihar is present nor any comments/views have been received.
The attendance sheets of officers participating in various meetings of 36th Screening Committee clearly support the fact that in none of the meetings any representative of State Government of Bihar was present.
370. In this regard, I may also mention that all through the entire trial, the sole emphasis of the accused public servants has been that it was the sole responsibility of CA-I Section officials and that of PW-1 V.S. Rana, the then Under Secretary CA-I Section to ensure that proper steps for convening the meeting are taken. It has been stated to be their duty only to send notices to all members of the Screening Committee and to send reminders, if comments from any stake CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 309 of 467 holders were not received till the time meetings were scheduled to be held. In fact it was also sought to be argued that from the composition of Screening Committee as was approved by Minister of Coal, Government of India, it was only the coal bearing states whose comments were relevant and not of the states where the proposed end used project was to be established if the same is different from the coal bearing state.
371. Before proceeding further it will be thus appropriate to first discuss as to whether State Government of Bihar was a necessary invitee to 36th Screening Committee meetings or also whether comments of Government of Bihar were required to be placed before the Screening Committee for its consideration.
b (i) Whether State Government of Bihar was a necessary invitee to 36th Screening Committee meetings.
b (ii) Whether the comments of State Government of Bihar were necessary to be placed before the Screening Committee.
b (iii) Whose responsibility was it to ensure that notice of Screening Committee meetings is issued to all members and to also ensure that comments of all concerned are made available to the Screening Committee for its consideration.
The discussion qua all the aforesaid issues is proposed to be carried out together as all the three issues are inter-connected and the discussion qua them will overlap.
372. However in order to appreciate the aforesaid issues it will be proper to first refer to the order specifying composition of Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 310 of 467 Committee as was uploaded on the website of MOC in November 2006, alongwith the advertisement inviting applications for 35 th and 36th Screening Committee. The same read as under:
COMPOSITION OF THE SCREENING COMMITTEE 1. Secretary, Ministry of Coal Chairman 2. Joint Secretary (Coal), Ministry of Coal Member- Convener 3. Adviser (Projects), Ministry of Coal Member 4. Joint Secretary (LA), Ministry of Coal Member 5. Representative of Ministry of Railways, New Delhi. Member 6. Representative of Ministry of Power, New Delhi Member 7. Representative of Concerned State Govt. Member 8. Director (Technical), CIL, Kolkata Member
9. Chairman - cum - Managing Director, CMPDIL, Ranchi Member
10. CMD of concerned subsidiary company of CIL/NLC Member
11. Representatives of Ministry of Steel Member
12. Representatives of Department of Industrial Policy & Member Promotion (Ministry of Industry)
13. Representative of Ministry of Environment and Forest Member (Emphasis supplied by me)
373. Thus the aforesaid composition of Screening Committee merely states that representative of concerned state Government shall be a member of the Screening Committee. It no where qualifies that representatives of the coal bearing states i.e. where coal block in question are situated shall only be the member of the Screening Committee. This issue gets further clarified if one refers to the guidelines pertaining to interse priority amongst the competing CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 311 of 467 applicants as were issued by MOC. Para 9 of the guidelines mentions the various factors on the basis of which interse priority among the competing applicants was to be decided.
Para 9 of the guidelines read as under:
9. Inter-se priority for allocation of a block among competing applicants for a captive block may be decided as per the following guidelines:
• Status (stage) level of progress and state of preparedness of the projects;
• Net-worth of the applicant company (or in the case of a new SP/JV, the net-worth of their principals); • Production capacity as proposed in the application; • Maximum recoverable reserve as proposed in the application;
• Date of commissioning of captive mine as proposed in the application;
• Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; • Technical experience (in terms of existing capacities in coal/lignite mining and specified end use); • Recommendation of the Administrative Ministry concerned;
• Recommendation of the State Government concerned (i.e. where the captive block is located); • Track record and financial strength of the company.
Preference will be accorded to the power and the steel sectors. Within the power sector also, priority shall be accorded to projects with more than 500 MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 million tonne per annum capacity.
(Emphasis supplied by me)
374. Thus from the aforesaid guidelines it is clear that while the state government where the proposed end use project is to be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 312 of 467 established shall be a member of the Screening Committee but in cases where it is not the same state where the coal block in question is situated then for deciding the interse priority, the recommendations of the coal bearing state shall only be relevant. In this regard one may argue that if such an interpretation is adopted then all states of the country ought to have been members of the Screening Committee, for a given applicant company may choose to establish its end use project in any state other than the coal bearing State.
375. Theoretically the aforesaid argument is completely true but in actual working it was not so. It is a matter of common knowledge that coal blocks in the country are situated only in very few states which in fact are even called mineral rich states. Thus on account of simple business/commercial prudence, any company desirous of seeking allocation of a captive coal block would like to establish its proposed end use project either in the same coal bearing state or at the most in the nearest state, for otherwise the transportation cost of coal itself will make the project financially unviable. However even otherwise the copies of applications received in MOC were sent to different stakeholders only after they were first segregated, block-wise, state- wise and end use wise. Admittedly such an exercise was undertaken in MOC after receipt of applications. The deposition of both PW-1 V.S. Rana and that of PW-7 Manas Kumar, the official of the office of Coal Controller clearly renders support to the aforesaid fact. Thus the segregation of applications must have given a clear picture to the MOC officers as to comments/views of which states were relevant or CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 313 of 467 are required to be called for even if they are not the coal bearing states. It would have been clear to them as to in which states the various applicant companies are proposing to establish their end use projects. In fact it was for this reason only in the guidelines containing composition of Screening Committee instead of mentioning names of any of the state governments, the following words were only mentioned:
"Representative of concerned State Govt."
376. Moreover if it was not so then there was no reason as to why one set of application of M/s VMPL seeking allocation of Moira- Madhujore coal block situated in the state of West Bengal but proposing to establish its end use project in State of Bihar, was sent to Government of Bihar vide letter Ex. PW-1/G-3 by MOC for seeking their comments. Even one set of applications of some companies was also sent to Government of Haryana, Punjab and to Government of Uttar Pradesh as the companies had proposed to establish their end use project in the said States. Undisputedly State of Haryana or Punjab or even Uttar Pradesh were not the coal bearing states.
377. In fact the opening para of minutes of 36 th Screening Committee Ex. PW 1/L (Colly) (D-11) also states that the applications of the companies were also sent to the concerned states where the blocks are located and also to the states where the proposed end use projects are located for their comments.
378. Even note dated 16.07.2008 of Sh. Ashish Gupta, Director, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 314 of 467 PMO [available from page 52/N to 58/N in file Ex. P-34 (Colly) (D-41)] on the basis of which recommendations made by 36 th Screening Committee were processed in PMO and were finally approved by Prime Minister as Minister of Coal also states that the applications were also sent to states where the proposed end use projects would be located.
Thus it is crystal clear that the comments of the State Government where the end use project is proposed to be established were important even if it is presumed that actual presence of representative of such a state was not required or mandated in the Screening Committee.
379. Moreover in the light of aforesaid facts and circumstances even if it is presumed for the sake of arguments that all these acts qua convening of the Screening Committee meeting or for ensuring comments from all stakeholders was the job of CA-1 Section officials of MOC and that of PW-1 V.S. Rana, the then Under Secretary, CA-I Section but still the question which arises for consideration is whether during the course of any of the five meetings of 36 th Screening Committee either A-4 H.C. Gupta who was Secretary Coal/Chairman Screening Committee or A-5 K.S. Kropha, the then Joint Secretary Coal/Member Convener, Screening Committee or even A-6 K.C. Samria, the then Director, CA-1 ever questioned the CA-I officials/officers as to why no representative from Government of Bihar is present or as to why no comments from Government of Bihar have been received. This aspect becomes all the more important CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 315 of 467 since during 35th Screening Committee meeting when coal blocks reserved for power sector were discussed and all the present three accused public servants were also present, than it has been argued that State of Bihar which again was not a coal bearing state and was only the state where proposed end use project i.e. power plant was to be established by M/s VMPL, was duly represented and even its comments were received vide letter dated 19.06.07 under the signatures of Sh. Phool Singh, the then Secretary Industries, Government of Bihar.
380. Coming now to the issue as to whose responsibility was it to ensure that notice of the Screening Committee meeting is sent to all members of the Committee and also that comments of all concerned are available before the Screening Committee, it will be worthwhile to mention that in the written submissions filed by Ld. Counsel for accused public servants, the role of convener of a meeting while referring to "Shackleton on the Law and Practice of Meetings" has been mentioned as under:
34. Convener :
34.1 As per Shackleton, convening means "causes to come together". In relation to the convening two important aspects will be considered: the notice and the business proposed to be carried through (agenda). (5-01 on p.41) 34.2 Therefore, convener would, logically, mean the person who "causes to come together".
34.3 The limited role of the convener was to get the notices issued, take steps for holding of the meetings. His role ends as soon as the meeting gets convened and thereafter, the chairman takes over.
(Emphasis supplied by me) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 316 of 467
381. The written submissions filed by Ld. Defence Counsel further read as under:
34.4 There are no complaints or testimonies that notices were not sent on time or that the members were denied from attending the meetings or that the meetings were not held properly. 34.5 The role or functions of a Member-Convener has not been defined or laid down in the notification constituting the Screening Committee nor has it been specified/ outlines in the Guidelines of MOC. Therefore, the term has to be necessarily construed and constructed in reference to its ordinary dictionary meaning. Dictionaries define the term "Convener" as a person who is required to call people to a meeting. An illustrative list is given below:
a A person whose job it is to call people together for meetings of a committee (Oxford English Dictionary);
b A person who arranges meetings for an official group of people (Cambridge Business English Dictionary);
c A person who convenes or chairs a meeting, committee especially one specifically elected to do so (Dictionary.com);
d The member of a group whose duty it is to convene meetings (The Free Dictionary Thesaurus); e A person who convenes or chairs a meeting, committee, etc, especially one who is specifically elected to do so (Collins English Dictionary).
34.6 Thus, the limited function of a Convener is to call, arrange or chair the meetings of the committee or group (if no separate chairman is appointed) of which he/ she may be the convener. This is precisely what the Appellant had done, without assuming or arrogating any of the functions or powers of the Screening Committee to himself.
34.7 It is also necessary not to confuse the role and functions of a Convener with that of a Secretary. These are distinctly different, as per the ordinary dictionary meaning. The Oxford Living Dictionary defines the term 'secretary' as an official of a society or other organization who conducts its correspondence and keeps its records."
(Emphasis supplied by me) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 317 of 467
382. Thus from the aforesaid submissions itself, it is clear that it was the role of the convener to get the notices issued and take steps for holding of the meetings. Accordingly it was the responsibility of A- 5 K.S. Kropha who was member convener of the meeting to get the notices issued to all members and take steps for holding of the meetings. However as A-5 K.S. Kropha was a senior officer of the rank of Joint Secretary so obviously such steps would have been taken by his subordinates but he being the member convener can not escape his responsibility of ensuring that notice of the meeting is issued to all concerned and that all proper steps for holding of the meeting are taken. It was certainly his responsibility to ensure that all concerned are duly invited to attend the meeting. The minutes also ought to have accordingly mentioned as to which of the essential members are not present or whose comments have not been received.
383. Moreover a perusal of note dated 14.11.2007 at note sheet page 10 in file Ex. P-7 (Colly) (D-11) shows that while sending the notices to members of Screening Committee qua initial meetings of 36th Screening Committee to be held on 07/08-12-2008 the file with draft notices to be so issued by CA-I Section moved through the desks of A-6 K.C. Samria and that of A-5 K.S. Kropha. Though for the subsequent meetings held on 07/08-02-2008 the notices were sent to members of Screening Committee with the approval being given by PW-1 V.S. Rana only and the file in this regard did not move up. However at the time of sending notices to members of Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 318 of 467 Committee for the final meeting to be held on 03/07/2008, the file with draft notices as were put up by CA-I Section went upto the desk of A- 6 K.C. Samria and after his approval was returned back to CA-I Section.
384. Thus A-5 K.S. Kropha being the member convener clearly failed to perform his duty in ensuring that notices are sent to all concerned for the meeting but even during the course of meeting he did not point out as to why representative of Government of Bihar was not present and that even no comments/views from Bihar Government have been received. Admittedly the Screening Committee was a small Committee comprising of only about 15/16 members and thus it would not have been difficult to notice that State Government of Bihar is not present. This would have also become apparent since M/s VMPL in his application had stated the location of its proposed end use project as Bihar only and the said company was finally recommended for allocation of a captive coal block by the Screening Committee for its end use project in Bihar only. A-6 K.C. Samria also thus can not escape from his responsibility in this regard and more so when he was not only Director CA-I Section but in so far as taking steps towards calling of Screening Committee meeting he can not divest himself from A-5 K.S. Kropha who was Joint Secretary, Coal and who was to act through him only while executing all such steps. In fact the position of A-6 K.C. Samria was very crucial in as much as he was not only to supervise the processing of applications as was being undertaken in MOC and to not only keep CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 319 of 467 senior officers abreast of all developments but to also execute their directions. At the cost of repetition it may be stated that as all the applications so received in MOC were addressed in the name of office occupied by A-6 K.C. Samria, even though at an earlier point of time some other officer was occupying the same.
In fact if the arguments of A-6 K.C. Samria are to be believed then except for acting as a post office and that he owed no responsibility of any nature whatsoever. As regard processing of applications in MOC he has tried to shift entire blame to CA-I Section and to PW-1 V.S. Rana, Under Secretary, CA-I Section while divesting himself of all responsibility in this regard despite being Director CA-I and his officer being the addressee in all applications. On the other hand in so far as the proceedings of Screening Committee are concerned he has again divested him of all responsibilities stating that since he was not a member of the Screening Committee and for the said proceedings it is A-5 K.S. Kropha and A-4 H.C. Gupta who may be responsible. This argument of A-6 K.C. Samria is also to be considered in the light of fact that he admittedly was present all through the meetings of Screening Committee and his name finds mention in the attendance sheets of all meetings of 36th Screening Committee.
385. In fact the records of the files of Government of Bihar also shows that qua 35th Screening Committee proceedings wherein applications received in MOC for allotment of caol blocks reserved for power sector were considered, then communication qua the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 320 of 467 application of M/s VMPL with respect to their proposed Integrated Power Plant to be established at Begusarai in Bihar on the said 300 acres of land itself were undertaken.
386. The file Ex. P-27 (Colly) of Department of Mines and Geology, Government of Bihar as is available in D-31 shows that on 27.08.2007, Sh. Narayan Murti, Deputy Secretary, Government of Bihar had written a letter to A-6 K.C. Samria intimating about the status of progress made by M/s VMPL towards setting up its power project. The said status was provided by Government of Bihar in response to a letter dated 02.08.2007 bearing No. 38011/1/2007/CA-I sent under the signatures of A-6 K.C. Samria himself seeking such a status of applicant companies for consideration by 35 th Screening Committee.
387. The aforesaid fact gains material importance as the said communication also talked about the same 300 acres of land allotted to M/s VMPL and on that occasion a power plant was proposed to be allocated over there. Similarly the letter dated 19.06.07 Ex. PW 19/DX-5 (D-31) written by Sh. Phool Singh, Commissioner & Secretary, Department of Mines and Geology also talked of M/s VMPL intending to establish a Power Project of capacity 2 X 250 MW at Begusarai Bihar itself. Thus when after few months the application of M/s VMPL again came up for consideration before 36 th Screening Committee qua their proposal to set up an integrated steel plant at Begusarai Bihar itself on 300 acres of land allotted to it then it would have certainly put the three accused MOC officers on guard as they CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 321 of 467 all three were present at the time of 35 th Screening Committee meetings also.
388. It is in these circumstances the absence of representatives of Stage of Bihar in the 36th Screening Committee meetings, having been not invited by MOC and even not insisting for comments of State of Bihar does raises eye brows as to the actual intention of accused MOC officers. Thus in order to appreciate the role played by all three accused MOC officers, a comprehensive view has to be taken of the working of these officers in the entire coal block allocation process. It can not be lost sight of that they were dealing with important nationalised natural resources of the country i.e. coal, which was having high monetary value in the market. Coal was one of the most important raw material required for the industrial growth of the country.
This fact also shows that while considering the application of company M/s VMPL for allocation of a captive coal block the Screening Committee did not consider the recommendation of state of Bihar at all as none was available. The averment in para 14 of the minutes Ex. PW 1/L (Colly) that while making its recommendations the Screening Committee took into consideration the status of preparedness of the applicant companies towards setting up the end use project was thus clearly not considered while making recommendation in favour of M/s VMPL. Since the status of preparedness of M/s VMPL towards setting up the end use project could have been ascertained only from the comments of Government CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 322 of 467 of Bihar and neither any such comments were received from Government of Bihar nor any representative was present in the Screening Committee meeting. The conduct of A-4 H.C. Gupta also thus assumes significance in the entire process and more so in the light of minutes of the meeting finally approved by him.
389. Thus from the aforesaid circumstances it becomes clear that one of the important stake holder i.e. State of Bihar whose comments/views would have thrown valuable light as to the claim of M/s VMPL in seeking allocation of a captive coal block was consciously left out of the 36th Screening Committee deliberations for reasons best known to accused MOC officers only. The falsity in the minutes Ex. PW 1/L (Colly) as regard the basis of recommendations in favour of M/s VMPL also stands writ large on the face of record.
390. At this stage before proceeding further, I may also put a mark of caution that while there may be various acts of omission and commission attributable to CA-I Section officials or even to PW-1 V.S. Rana, the then Under Secretary, MOC which may even make them culpable in a given situation/proceeding but in the present trial what is being examined now is the role played by the present three accused public servants i.e. A-4 H.C. Gupta, the then Secretary Coal/Chairman Screening Committee, A-5 K.S. Kropha, Joint Secretary, MOC/Member Convener, Screening Committee and A-6 K.C. Samria, the then Director, CA-1 Section, MOC. No evidence has however come on record which could suggest that CA-I Section or PW-1 V.S. Rana were hands in glove with the senior officers of MOC CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 323 of 467 in any manner. Thus my discussion and analysis of the evidence led in the present case will primarily remain confined to the role played by these three accused public servants only. It is however true that these three accused public servants can not be held vicariously liable for any act of omission or commission attributable to other officials/officers of MOC and can be held liable only for such acts of omission as are directly attributable to them. However at the same time an accused can not claim that since the role of other persons is not being looked into so his role also should not be looked into.
391. The absence of representative of State of Bihar in the 36 th Screening Committee meeting assumes all the more importance especially in view of the fact that the allotment of 300 acres of land earlier made in favour of M/s VMPL by BIADA was cancelled much before 07.02.2008 i.e. the date when presentation was made by M/s VMPL and the Form for Feed Back was submitted by it to 36 th Screening Committee. Had representative of state Government of Bihar been invited to the 36 th Screening Committee meetings as were held on 07/02/2008 or on 03/07/2008 or comments from state of Bihar insisted upon then there was no reason as to how M/s VMPL could have continued to misrepresent before the Screening Committee about its status/stage of preparedness towards establishing the proposed end use project.
The aforesaid facts and circumstances certainly throws light as to the nature of functioning of MOC officers and that of 36 th Screening Committee and also as regard the process adopted by the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 324 of 467 Screening Committee in arriving at its recommendations.
392. I now propose to deal with the circumstances in which as per accused public servants the Screening Committee allegedly arrived at its recommendation for allocation of Moira-Madhujore coal block in favour of M/s VMPL.
(c) Process followed by 36th Screening Committee which led to selection of A-1 M/s VMPL as a joint allocatee for allocation of Moira-Madhujore coal block.
393. DW-6 Shivraj Singh, the then Chief Secretary, Government of Chhattisgarh had represented State Government of Chhattisgarh in 36th Screening Committee meeting held on 03.07.08. He was examined as a defence witness by A-4 H.C. Gupta, the then Secretary, Coal and Chairman Screening Committee in his defence. In his examination-in-chief DW-6 Shivraj Singh deposed as under:
"Thereafter, coal blocks up for allocation were taken up state wise followed by block by block discussion. Whenever any particular coal block came up for discussion then first of all representative of Ministry of Steel was asked to state as to which applicant companies as per them were suitable for allocation of said coal block. Similar views were asked from representative of DIPP. Thereafter, representative of the state government where the coal block under consideration was located was also asked to state as to which of the applicant companies as per them should be allocated the given coal block. Thereafter, Member Convener of the meeting namely Sh.
K.S. Kropha Joint Secretary Coal used to be asked as to whether he had any comments to offer. After consulting the aforesaid four representatives then the Chairman used to generally ask other members present as to whether they had any comments to offer in the matter. If there was a unanimity regarding any given applicant company(ies) for being recommended for allocation of the given coal block then the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 325 of 467 Chairman used to announce the same as the final decision of the meeting. If there was difference of views then further discussion used to take place and thereafter the final decision used to be taken on broad consensus which again used to be announced by the Chairman."
394. Thus if the aforesaid process of discussion undertaken in the meeting as has been stated by DW-6 Shivraj Singh in examination-in- chief is considered to be the actual process undertaken in the meeting then various question-marks arises as regard the role played by the accused public servants in the Screening Committee meeting. An analysis of the aforesaid process allegedly adopted by 36 th Screening Committee is quite instructive as to how the name of M/s VMPL could have come up for discussion and was finally recommended for allocation of Moira-Madhujore coal block.
395. In this regard it will be important to first discuss the role played by representative of State government of West Bengal. Admittedly the name of M/s VMPL was not recommended to MOC by State Government of West Bengal for allotment of any coal block situated in State of West Bengal much less qua Moira-Madhujore coal block. In fact DW-5 Bhaskar Khulbe, (Advisor) Industries, Government of West Bengal [He was examined as a defence witness by A-4 H.C. Gupta] who was present in 36th Screening Committee meeting held on 03.07.2008 as a representative of State Government of West Bengal stated that in the meeting he had reiterated the recommendations already made by Government of West Bengal to MOC qua coal blocks situated in the state. Thus it is clear that DW-5 Bhaskar Khulbe representative of state of West Bengal himself had CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 326 of 467 not recommended the name of M/s VMPL. In fact it is not even the case of accused public servants that DW-5 Bhaskar Khulbe had himself recommended or even proposed the name of M/s VMPL for allocation of any coal block much less for allocation of Moira- Madhujore coal block.
396. During the course of his examination-in-chief, DW-5 Bhaskar Khulbe was put the following question by Ld. Counsel for A-4 H.C. Gupta to which he answered as under:
Q I put it to you that you sought the Chairman's approval to go out of the meeting to consult on phone Sh. Sabyasachi Sen, Principal Secretary, Commerce and Industries, Government of West Bengal in order to consult Sh. Sabyasachi Sen qua recommendation in favour of M/s VMPL and three other companies for Moira Madhujore coal block by replacing JAS Infrastructure (Abhijit) with VMPL in the recommendation of Government of West Bengal in line with the recommendation of line ministries.
A I did go out of the meeting but in order to apprise Sh. Sabyasachi Sen on phone that out of recommendation in favour of three companies as made by Government of West Bengal earlier to MOC in writing, recommendation qua JAS Infrastructure (Abhijit) was not being accepted but it is wrong to suggest that I went out to consult Sh. Sabyasachi Sen qua the companies being replaced in place of JAS Infrastructure (Abhijit).
(Emphasis supplied by me) PW-18 Sabya Sachi Sen however claimed ignorance about having received any such call from DW-5 Bhaskar Khulbe in this regard. However even if it is presumed for the sake of arguments that DW-5 Bhaskar Khulbe did seek approval of PW-18 Sh. Sabya Sachi Sen qua allocation of Moira-Madhujore coal block in favour of M/s CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 327 of 467 VMPL then also this circumstance leads to only one logical conclusion that the name of M/s VMPL was at least not proposed by him in the meeting of Screening Committee. The suggestion put to him on behalf of accused persons can at the most suggest that he went out to seek approval from his senior qua M/s VMPL only upon finding that the Screening Committee is inclined to recommend M/s VMPL for allocation of Moira-Madhujore coal block.
397. The purpose of mentioning the aforesaid facts is only to demonstrate that in the Screening Committee meeting held on 03.07.08 representative of Government of West Bengal had himself not proposed the name of M/s VMPL for allocation of Moira- Madhujore coal block.
398. Similarly PW-14 Sh. Shashi Ranjan Kumar, Deputy Secretary/Director DIPP stated in his deposition that in the Screening Committee meeting he had reiterated the recommendations of DIPP as were already sent to MOC. He also stated that as regard Moira- Madhujore coal block M/s Lafarge India Pvt. Ltd. was recommended by DIPP for its proposed cement project. His testimony to this effect has remained uncontroverted. Thus irrespective of the fact whether M/s Lafarge India Pvt. Ltd. was a deserving applicant company for allocation of Moira-Madhujore coal block or not, it is clear that PW-14 Sh. Shashi Ranjan Kumar also had not recommended the name of M/s VMPL for allotment of any coal block much less qua Moira- Madhujore coal block in the Screening Committee meeting. Once again it is also not the case of even accused public servants that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 328 of 467 representative of DIPP recommended or proposed the name of A-1 M/s VMPL for allotment of any coal block.
399. In these circumstances one is left with only two other stake holders i.e. MOC being the Nodal Ministry and Ministry of Steel which was the concerned administrative Ministry qua steel projects. Admittedly the views of CIL or CMPDIL would have been relevant only qua the technical aspects and thus their views are not at all relevant over here for the purpose of present discussion, even if any views were expressed by them. Moreover the views, if any expressed by them in the meeting are neither reflected in the minutes of the meeting nor from any subsequent noting in the files of MOC.
400. Further from the deposition of DW-6 Sh. Shivraj Singh, it can be safely inferred that the representative of Ministry of Steel must have been first asked about his views. Admittedly M/s VMPL was placed under category-VI by Ministry of Steel in terms of its recommendations sent to MOC vide OM dated 06.12.07 Ex. PW-1/H- 5 [available from page 830-855 in file Ex. P-9 (Colly) (D-13)]. At the same time it is also an undisputed case that in all 29 companies who were proposing to establish steel project had applied for allocation of Moira-Madhujore coal block and out of them eight companies were placed in higher categories by Ministry of Steel than that of M/s VMPL. In these circumstances it could not have been possible at the first place for representative of Ministry of Steel to propose the name of M/s VMPL for allocation of Moira-Madhujore coal block when there were eight other companies already placed by them in higher CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 329 of 467 categories than that of M/s VMPL.
401. DW-6 Shivraj Singh also stated that after the views of Administrative Ministries and that of State Governments were sought then Joint Secretary, Coal/Member Convener Screening Committee, Sh. K.S. Kropha, used to be asked as to whether he has any comments to offer. Thus even if it is presumed for the sake of arguments that name of M/s VMPL was proposed by representative of Ministry of Steel for allocation of Moira-Madhujore coal block then also the necessary and logical corollary which follows is that upon being asked to offer his comments, Member Convener, Sh. K.S. Kropha who was also a Member of the Screening Committee and was representing MOC i.e. the nodal Ministry was duty bound to raise a query as to why the name of a company which has been placed under Category-VI by Ministry of Steel is being proposed and more- so when eight other companies are already available in higher categories as recommended by Ministry of Steel itself. Even if it is stated that Sh. K.S. Kropha was not competent to raise a query but than at least while offering his comments to the Screening Committee he was expected to point out to the Screening Committee that in the Ministry of Steel recommendations sent to MOC there are eight (8) other applicant companies placed in higher categories than company M/s VMPL. Moreover apart from representatives of Ministry of Steel, only the officers of MOC could have pointed out the aforesaid fact before the Screening Committee as the recommendations sent by Ministry of Steel to MOC were admittedly available in the Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 330 of 467 Committee either with Ministry of Steel officers or with Ministry of Coal officers only. It has specifically come on record that the recommendations of Administrative Ministries as were sent to MOC were not supplied to other members of Screening Committee.
402. Thus if such a comment was not offered by A-5 K.S. Kropha Joint Secretary, MOC then it was for him to explain only as to the circumstances in which he chose not to make such a comment or to disclose the said information to the Screening Committee. In fact the minutes of 36th Screening Committee are otherwise completely silent in this regard. No question or suggestion was even put in this regard either to DW-5 Bhaskar Khulbe or to DW-6 Shivraj Singh or to PW-12 Sh. N.R. Dash or even to PW-14 Shashi Ranjan Kumar who all were admittedly present in the Screening Committee meeting, that any such comment was offered by Joint Secretary Coal, Sh. K.S. Kropha.
403. The other side of aforesaid circumstances is that even Ministry of Steel representative had also not proposed the name of M/s VMPL for allocation of Moira-Madhujore coal block and it was MOC officers themselves only who proposed the name of M/s VMPL for allocation of Moira-Madhujore coal block. PW-12 Sh. N.R. Dash who was present alongwith Sh. U.P. Singh, the then Joint Secretary, Ministry of Steel also stated in his deposition that Ministry of Steel had only reiterated its recommendation in the Screening Committee meeting as were already sent by them to MOC. No question or suggestion was even put to the said witness that the name of M/s VMPL was proposed by representative of Ministry of Steel in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 331 of 467 Screening Committee meeting.
404. Thus the aforesaid conclusion about the probable course of action in which the discussion qua A-1 M/s VMPL to be recommended for Moira-Madhujore coal block must have gone in the Screening Committee meeting held on 03.07.08, appears to be the only logical conclusion arising from the evidence led on record both by the prosecution and the accused persons. An attempt has only been made by the Court to reconstruct the sequence of events which could have taken place in the Screening Committee meeting held on 03.07.08, if at all any discussion/deliberation took place over there. Moreover the sequence of events so charted is also based on the deposition of DW-6 Shivraj Singh, who was representing State of Chattishgarh in the Screening Committee and was examined as a defence witness by A-5 K.S. Kropha himself. Further more as the minutes of meeting are completely silent as to who actually proposed the name of M/s VMPL so from the aforesaid deduction of logical steps, it stands well established that the name of M/s VMPL could have been proposed only by MOC officers present in the Screening Committee meeting and by none else. At the cost of repetition, I may also state that if K.S. Kropha, Joint Secretary, Coal/Member Convener of the Screening Committee had not opposed the name of M/s VMPL by disclosing complete and correct information before the Screening Committee, then even if the same was proposed by any other member of the Screening Committee then also the same is illustrative of yet another instance of abdication of his duty by him.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 332 of 467 Similar is the role played by A-4 H.C. Gupta who was chairing the meeting. Thus if a company whose name was neither recommended by the state government where the coal block in question was situated i.e. by State Government of West Bengal nor by DIPP and the Ministry of Steel which was the concerned Administrative Ministry had chosen to place M/s VMPL in category-VI while placing eight other companies in higher categories, then it was incumbent upon the MOC officers i.e. A-4 H.C. Gupta and A-5 K.S. Kropha who were the Chairman and Member Convener of the Screening Committee respectively to at least put the things in right prospective during the course of deliberations itself. Moreover it was least expected of them that if recommendation in favour of any company is being made then reasons thereof are duly mentioned in the minutes so that the competent authority ie. Minister of Coal would have known the actual facts or circumstances in which recommendation in favour of such a company was made. Moreover since the function being discharged by the Screening Committee was of utmost public importance and pertained to allocation of important nationalized natural resources of the country so due objectivity and transparency was required to be maintained in the entire process so that the reasons for recommending such a company for allocation of a captive coal block are apparent from the face of record.
Thus irrespective of the fact as to whether separate minutes of all five meetings of 36 th Screening Committee ought to have been recorded or not, the fact remains that the minutes so CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 333 of 467 recorded ought to have disclosed the process adopted by the Screening Committee in arriving at its recommendations in favour of certain companies or as to why other companies have not been selected. The two elements of objectivity and transparency qua which it has been claimed that accused MOC officers were repeatedly insisting upon in MOC were the first casualty when the occasion demanded the same from them. Even if their earlier proposal to do away with the Screening Committee route was not accepted and they were thus compelled to continue to follow the Screening Committee route only then the least they could have done was to ensure complete transparency and objectivity in the entire process. The best course to do so would have been to strictly follow the guidelines and to record reasons for their every action. Consequently the minutes of the meeting would have disclosed very fairly the entire process followed or the reasons as to why certain companies were chosen to be recommended as compared to the claims of other applicant companies.
Moreover the fact that M/s VMPL which was so recommended was found to be having the least prepared status towards setting up the proposed end use project as the very land alloted to it by BIADA was already cancelled and was even found to have misrepresented in its application as regard its financial strength and existing and proposed capacity, so grave doubts does arise about the conduct of accused MOC officers in the entire process or as regard the reasons, if any for selecting M/s VMPL over the other CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 334 of 467 competing applicant companies.
At this stage, I would also like to mention that if for any given coal block none of the applicant company(ies) was found to be suitable then there was no compulsion upon the Screening Committee to compulsorily make recommendation for allotment of said coal block in favour of one or the other applicant company(ies).
405. At this stage, it will be also appropriate to deal with yet one other argument put-forth by the accused persons and especially as was argued on behalf of A-5 K.S. Kropha and A-6 K.C. Samria that on account of the existing capacity of sponge iron plant of company M/s VMPL, even though in West Bengal, the company ought to have been placed in category-II and not in category-VI as was done by Ministry of Steel.
406. However PW-12 N.R. Dash in whose cross-examination the said suggestion was put by Ld. Counsel for accused public servants strongly refuted the said claim by stating that in accordance with the criteria adopted by Ministry of Steel, both the existing as well as the proposed capacity of the end use project ought to have been at the same place. Thus as regard M/s VMPL, it was stated by him that as the existing capacity of the company was at West Bengal whereas the proposed end use project was to be established in Bihar so Ministry of Steel while categorizing the company as per their criteria did not consider the existing capacity at West Bengal and consequently placed the company in category-VI.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 335 of 467
407. Ld. Counsels for the accused public servants however disputed the said claim of PW-12 N.R. Dash and stated that the company M/s VMPL was wrongly placed in category-VI by Ministry of Steel and it ought to have been placed in category-II.
408. In this regard I may however state that the aforesaid argument as regard the category in which M/s VMPL ought to have been placed by Ministry of Steel is completely irrelevant for the simple reason that during the Screening Committee meeting held on 03.07.08 no such discussion at all took place. It is not the case of anyone that in the Screening Committee meeting any such issue arose or was discussed at all. Even if the argument put-forth by Ld. Counsels for the accused public servants is presumed to be correct then also any such realisation now during the course of trial is of no consequence at all. What is being examined in the present proceedings is as to on what considerations M/s VMPL came to be recommended for allocation of a captive coal block. The question which thus arises for consideration is whether in the Screening Committee meeting held on 03.07.08 this fact was pointed out to representative of Ministry of Steel or not. Since it is not the case of anyone that this issue was raised in the Screening Committee meeting itself much less discussed and deliberated upon so it can not be even remotely presumed that recommendation in favour of M/s VMPL for allocation of a captive coal block was made after realising the aforesaid alleged mistake in the recommendations made by Ministry of Steel. Once again the minutes of the meeting which is the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 336 of 467 only written record available in this regard of the contemporary period is completely silent qua this aspect. No presumption can thus be drawn that even though not recorded in the minutes but such discussion did take place in the meeting or that any such discussion must have taken place.
409. In these circumstances there does not arise any need to examine as to whether M/s VMPL ought to have been placed in category VI or category II. However, I may state that the issue regarding existing plant of A-1 M/s VMPL at West Bengal will also arise for consideration at a slightly later stage when it will be discussed as to for which plant of the company, the Screening Committee had recommended allocation of a captive coal block. Moreover by calling upon this Court to consider the categorisation of the company under one or the other category(ies) as were devised by Ministry of Steel, the accused MOC officers are primarily asking this Court to consider their oral claim which is not supported by any written record and when especially such written record ought to have existed if at all any such discussion had taken place in the Screening Committee meeting.
410. Be that as it may from the records of the case and the overall facts and circumstances of the case as discussed above, it cannot be even presumed for the sake of arguments that in the Screening Committee meeting any discussion qua the categorisation of A-1 M/s VMPL in terms of the categories devised by Ministry of Steel at all took place.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 337 of 467
411. At this stage it would be now also worthwhile to briefly discuss the status of various companies who had applied for allocation of Moira-Madhujore coal block before the 36th Screening Committee.
412. Total number of applicant companies qua whom Ministry of Steel had sent the detailed status and categorisation vide Office Memorandum dated 06.12.2007 Ex. PW 1/H-5 (Colly) was 125. The said companies had applied for various coal blocks situated in different States. Out of them Thirty-One (31) companies were placed under "NIL" Category. Forty-Nine (49) companies were placed under category VI. Forty-Five (45) companies were however placed in the five other categories i.e. from Category I-V.
413. However, before proceeding further it will be appropriate to once again reproduce over here for a ready reference, the various categories as were devised by Ministry of Steel. The said criteria as was communicated to MOC by PW 12 N.R. Dash vide Office Memorandum dated 14.12.2007 Ex. PW 12/A (Colly) [available from page 289 to 290 in file Ex. P-6 (colly) (D-10)] read as under:
"Guidelines to be followed for the consideration of allotment of coal block.
0.3mT (million metric Ton) or more capacity of production of sponge iron either existing or proposed up to December, 2010.
0.5mT (million metric Ton) or more capacity of production of pig iron either existing or proposed up to December, 2010. Background of the company-whether associated with steel, sponge, iron, pig iron or mining activity.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 338 of 467 Financial status of the company and the extent of financial tie up.
Coal washery should be envisaged in the project. Capacity of the company to quickly undertake development of coal mines based on experiance or any credible effective steps.
2. While the above criteria will determine eligibility, following priorities may be considered for allocation of coal blocks up to 50% satisfaction level which are mentioned below:-
Category I: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a)No coal linkage, no captive coal block.
(b)Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category II: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
(a)No coal linkage, no captive coal block.
(b)Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category III: Any group of companies or consortium whose individual existing capacities are ineligible, make a viable joint venture and which joint venture enables it to have eligible capacity and the application is submitted in the name of joint venture.
(a)No coal linkage, no captive coal block.
(b)Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category IV: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a)No coal linkage, captive coal block with less than 50% satisfaction level.
(b)Partial coal linkage, captive coal block with less than 50% satisfaction level.
Category V: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 339 of 467
(a)No coal linkage, captive coal block with less than 50% satisfaction level.
(b)Partial coal linkage, captive coal block with less than 50% satisfaction level.
Category VI: Companies having no existing capacity, but proposes eligible capacity to be commissioned by December, 2010.
Category VII: Any group of companies or consortium which forms a Joint Venture and such Joint Venture has Ineligible existing capacity but proposed expansion capacity of the Joint Venture enables it to have eligible capacity and the application is submitted in the name of Joint Venture."
414. While placing the applicant companies under one or the other category, Ministry of Steel had however considered the information furnished in their applications by the applicant companies only. As regard Moira-Madhujore Coal Block Twenty-Nine (29) companies had in fact applied. Out of them Eight (8) companies were placed by Ministry of Steel in category I-V. Nineteen (19) companies including M/s VMPL were however placed in Category VI. The remaining two companies were however not assigned any category.
415. On the other hand, DIPP vide Office Memorandum dated 16.05.2007 Ex. PW 14/A (colly) [available from page 1A to 37 in file Ex. P-6 (colly) (D-10)] had recommended fifteen (15) companies for allocation of one or the other coal block from out of ninety-five (95) applicant companies belonging to cement sector as were received by it from MOC. As regard Mora-Madhujore Coal block M/s Lafarge India Pvt. Ltd was recommended by DIPP.
416. Coming now to the total recommendations made by 36 th CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 340 of 467 Screening Committee in its meeting held on 03.07.2008 for various coal blocks including Moira-Madhujure Coal block it will be pertinent to mention that for 23 coal blocks which were under consideration Thirty-Eight (38) companies in all were recommended. Out of them Twenty-Six (26) companies so recommended were engaged in Iron & Steel sector and the other Twelve (12) companies were engaged in Cement sector.
417. Further from out of Twenty-Six (26) companies engaged in iron and steel sector so recommended by 36 th Screening Committee, Fifteen (15) companies were from out of Forty-Five (45) companies which were placed in category I-V by Ministry of Steel. Eight (8) companies were from out of Forty-Nine (49) Companies placed in Category VI by Ministry of Steel. Three (3) Companies were however recommended from out of Thirty-One (31) Companies placed under category "NIL" by Ministry of Steel i.e. companies who were assigned no category.
418. As regard Twelve (12) Cement companies which were recommended for allocation by 36th Screening Committee ten (10) companies were from out of those Fifteen (15) companies which were recommended by DIPP also. However, Two (2) other companies so recommended by the Screening Committee were in fact not recommended by DIPP for allocation of any coal block. The remaining five (5) companies though recommended by DIPP were however not recommended for allocation of any coal block by the 36 th Screening Committee.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 341 of 467
419. As regard Moira-Madhujore Coal block Six (6) companies were in fact recommended by the Screening Committee for joint allocation. From out of the six companies so recommended namely (1) Ramsarup Lohh Udyog, (2) Adhunik Corporation Ltd, (3) Uttam Galva Steels Ltd, (4) Howrah Gases Ltd, (5) Vikash Metal & Power Ltd and (6) ACC Ltd, five (5) companies were engaged in Iron & Steel sector and One (1) company was engaged in Cement sector. From out of five (5) companies engaged in Iron & Steel Sector, three (3) companies were from out of those companies which were placed under category VI by Ministry of Steel. One other company i.e. Ramsarup Lohh Udyog recommended by the Screening Committee was however placed under "NIL" category by Ministry of Steel. The fifth company recommended by the Screening Committee was placed in category II by Ministry of Steel.
420. Thus from out of Twenty-Nine (29) companies which had applied for Moira-Madhujore Coal block, Twenty-Four (24) companies were not recommended by the Screening Committee for allocation of any coal block. Moreover as earlier also mentioned from out of eight (8) companies which were placed in Category I-V by Ministry of Steel only two (2) companies were recommended for allocation of one or the other coal block i.e. one for Moira-Madhujore coal block and the other for some other coal block. There were Three (3) other companies who had though applied for Moira-Madhujore coal block but were recommended for allocation of some other coal block by the Screening Committee.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 342 of 467
421. For a ready reference the aforesaid detailed facts have been tabulated as under also:
A) Recommendations made by Ministry of Steel to MOC vide Office Memorandum Ex. PW 1/H-5 (colly) (D-13).
1 Total number of companies 125(i) Total number of companies placed under category I-V 45
(ii) Total number of companies placed under category VI 49
(iii) Total number of companies placed under category 31 "NIL"
Total 125B) Recommendations made by D.I.P.P. to MOC vide Office Memorandum Ex. PW 14/A (colly) (D-10).
1 Total number of applications received by D.I.P.P qua 95 cement sector 2 Total number of companies recommended 15 C) Total Recommendations made by 36 th Screening Committee with respect to 23 Coal Blocks in terms of Minutes Ex. PW 1/L (colly) (D-11).
1 Total Recommendations made 38 companies
(i) Total number of companies engaged in Iron & Steel 26
sector
(ii) Total number of companies engaged in cement sector 12
Total 38
D) Bifurcation of 26 companies engaged in Iron & Steel sector as were recommended for allocation of captive coal blocks by 36 th Screening Committee vis-a-vis the recommendations of Ministry of Steel.
1 Companies under category I-V 15 2 Companies under category VI 8CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 343 of 467 3 Companies under category "NIL" 3 Total 26 E) Bifurcation of 12 companies engaged in cement sector as were recommended for allocation of captive coal blocks by 36 th Screening Committee vis-a-vis the recommendations of D.I.P.P.
1 Companies recommended by D.I.P.P 10 2 Companies not recommended by D.I.P.P 2F) Status of applicant companies engaged in Iron and Steel sector who applied for allocation of Moira Madhujore Coal Block.
1 Total companies applied 29 (i) Companies placed in category I-V 8 (ii) Companies placed in category VI 19 (iii) Companies placed in category "NIL" 22 Companies from category I-V recommended by 36 th 1 Screening Committee for allocation of Moira Madhujore coal block 3 Companies who were recommended for other coal 4 blocks 4 Companies not recommended for allocation of any 24 coal block G) Status of six companies who were recommended for joint allocation of Moira Madhujore coal block by 36 th Screening Committee vis-a-vis recommendations of Ministry of Steel and that of D.I.P.P.
1 M/s Howrah Gases Ltd Category - II (Ministry of Steel) 2 M/s Adhunik Corporation Ltd Category - VI (Ministry of Steel) 3 M/s Uttam Galva Steels Ltd Category - VI (Ministry of Steel) 4 M/s Vikash Metal & Power Ltd Category - VI (Ministry of Steel) 5 M/s Ramsarup Lohh Udyog Ltd Category - NIL (Ministry of Steel) 6 M/s ACC Ltd Recommended for Kesla/Rajhara Coal Block by D.I.P.P. and not for Moira Madhujore coal block.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 344 of 467
422. The whole purpose of carrying out the aforesaid extensive analysis is only to highlight that though there appears to have been conscious decision by the Screening Committee of selecting some companies and eliminating others but neither the Minutes of Screening Committee nor any subsequent noting in the files of MOC throws any light at all as to the reasons or process adopted for selecting some companies and not selecting others. The purpose of the entire exercise is not to either suggest or to substitute the decision of the Screening Committee qua any company in any manner but to only highlight that in the entire process of coal block allocation the twin concepts of objectivity and transparency were completely thrown to wind. Nothing is ascertainable from the record as to on what basis the inter-se priority or inter-se merit was arrived at from amongst the various competing applicant companies who had applied for allocation of Moira-Madhujore coal block. The proceedings of Screening Committee or that of MOC are completely silent in this regard.
423. It is in these circumstances, the submissions of Ld. Counsels for accused public servants that if the reasons for selecting some companies for being recommended for allocation of coal blocks or for not selecting the others were to be recorded in the minutes itself then the same would have run into hundreds of pages, certainly appears to be a lame excuse so as to cover up their arbitrary and malafide acts of exercise of discretion.
424. When the aforesaid selection of some companies and CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 345 of 467 elimination of others is seen in the light of deposition of DW-5 Bhaskar Khulbe and that of DW-6 Shivraj Singh then it is found that in the Screening Committee meeting held on 03.07.08, the Screening Committee within a time period of about 1 ½ hour arrived at its recommendations while discussing about 674 applications and that too for 23 coal blocks. The said meeting undisputedly started at 3 PM. In fact while suggesting the date of Screening Committee to be held on 03.07.08, A-4 H.C. Gupta also indicated the time of proposed meeting as 3 PM [At note sheet page 32 in file Ex. P-7 (Colly) (D-11)]. The attendance sheet of officers who participated in the meeting held on 03.07.08 also stated the meeting time as 3 PM. It is in these circumstances, difficult to believe as to how the Screening Committee deliberated on the information furnished by various applicant companies and also on various factors as are mentioned in the minutes of 36th Screening Committee meetings.
At this stage, it would be worthwhile to refer to the relevant portion of the minutes Ex. PW 1/L (Colly) (D-11) over here:
13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The committee also took into consideration the views/comments of the Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above. As regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows: The capacity indicated in the application form;
The capacity indicated in the MOU entered into between the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 346 of 467 applicant company and the State Govt. concerned, wherever applicable;
The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/ Department concerned;
14. Based on the data furnished by the applicants, and the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end- use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc.
(Emphasis supplied by me)
425. It is in the aforesaid circumstances being repeatedly emphasized that the minutes Ex. PW 1/L (Colly) (D-11) of 36 th Screening Committee do not reflect any reasons much less any process on the basis of which the committee arrived at its recommendations. In fact it was only the main application of each company as was submitted in the prescribed format which was part of the agenda note. The various supporting documents are no where shown to have been considered by the Screening Committee. In fact at a slightly later stage I shall be also discussing and demonstrating that a perusal of the application of M/s VMPL would have also indicated to the MOC officers that the applications have not been checked for their completeness and eligibility.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 347 of 467
426. It is thus crystal clear that the guidelines issued by MOC for ascertaining inter se priority from amongst the competing applicants were not at all followed. The over all facts and circumstances as mentioned above thus clearly points to only one irresistible conclusion that the accused MOC officers whose duty was it to ensure compliance with the guidelines did not do so only because they wanted to extend some undue benefit to certain companies and that too as against the public interest. They thus clearly abused their position as such.
427. At this stage I may again mention that the aforesaid sequence of events relating to proceedings of the Screening Committee have been deduced not by way of any presumption or assumption but are the necessary and natural corollary emerging out from the evidence led by the prosecution as well as by the accused persons themselves.
(d) Significance of signing the recommendation sheets by the members of Screening Committee in its meeting held on 03.07.2008 and whether it conveys unanimity.
428. It has been also strongly argued by Ld. Counsels for the accused public servants that the very factum of signing of recommendation sheets by the members of Screening Committee at the conclusion of the meeting held on 03.07.08 clearly shows that they all were in agreement with the recommendations so made by the Screening Committee on that date. It was also argued that since CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 348 of 467 none of the members made any dissent note on the recommendation sheets so the same also shows that all the decisions taken in the Screening Committee meeting were unanimous and all the members had consented to the same.
My Discussion
429. At the outset, I may state that the aforesaid argument though appears to be forceful but is completely not tenable especially in view of my earlier discussion wherein it has been concluded that qua discussion pertaining to any coal block situated in a given state, it was only the representative of the said coal bearing state and the state where the proposed end use project was to be established who were only concerned with the discussion and not the representatives of all state Governments. Representatives of MOC were common factors in discussion of all coal blocks under consideration as Ministry of Coal was the Nodal Ministry. Further if the applicant companies who had applied for allocation of any given coal block were proposing to establish iron/sponge iron/steel project then Ministry of Steel representative was also the concerned member and in case any company seeking allocation of the said coal block was proposing to establish a cement project then representative of DIPP was also a concerned member to the discussion. Representatives of CIL and CMPDIL were admittedly concerned only with the technical aspect of the matter. However the representatives of none of the other State Governments or that of Ministry of Power were in any manner concerned with the said discussion. In these circumstances if despite CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 349 of 467 the aforesaid admitted position, all the members of the Screening Committee were asked to put their signatures on the recommendation sheets qua all coal blocks then in no way the factum of signing the recommendation sheets can signify either their consent or unanimity in the decision of the Screening Committee.
430. DW-6 Shivraj Singh in fact stated in his deposition that apart from making a general statement in the beginning of the meeting held on 03.07.08, he had offered his comments qua the coal blocks situated in the State of Chhattisgarh only. He further stated that as he was not concerned with the coal blocks situated in other states as long as none of the applicant companies seeking allocation of any such coal block had proposed to establish its end use project in State of Chattisgarh so no comments were offered by him in the discussion qua other coal blocks. Admittedly copies of applications of various applicant companies were not sent to all members of the Screening Committee. DW-6 also deposed that during the course of Screening Committee meeting he had also gone out to have tea etc for about 30 minutes and similarly some other members had also gone out of the meeting hall. Thus from the aforesaid circumstances, it is clear that when all the members present had not participated in the discussion qua each of the coal block under consideration or qua each of the applicant company then it can not be concluded by any stretch of imagination that mere signing of recommendation sheets at the end of meeting signifies that all decisions were taken with unanimity or that all the members were in agreement with the decisions so taken.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 350 of 467
431. The aforesaid conclusion further gets fortified when it is found that even the five recommendation sheets prepared in the meeting held on 03.07.2008 were not signed by all the members present. In the cross-examination of DW-6 Sh. Shivraj Singh it has been demonstrated by Ld. Sr. P.P. that while the recommendation sheet with respect to coal blocks situated in the state of Madhya Pradesh was signed by 16 members of the Screening Committee but the recommendation sheet with respect to coal blocks situated in the state of Jharkhand was signed only by 14 members. Similarly the recommendation sheet with respect to coal blocks situated in the state of Maharashtra was also found to have been signed by 14 members only. On the other hand the recommendation sheet with respect to coal blocks situated in the state of West Bengal was signed by 15 members. Strangely enough the recommendation sheet with respect to coal blocks situated in the state of Chhattisgarh was found to have been signed only by 13 members of the Screening Committee. It was also found that none of the five recommendation sheets as above were signed by representatives of MOC i.e. neither by A-4 H.C. Gupta, who also was the Chairman of the Screening Committee nor by A-5 K.S. Kropha who was the Member Convener of the Screening Committee.
The aforesaid facts not only demonstrate as to how casual and perfunctory was the functioning of Screening Committee but it also reinforces the conclusion that as the various recommendation sheets were not signed by all the members present CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 351 of 467 including MOC officers so by no stretch of imagination can it be concluded that signing of recommendation sheets in any manner conveyed that all the decisions of the Screening Committee were taken with unanimity.
432. The factum of non-signing of recommendation sheets either by A-4 H.C. Gupta, Chairman, Screening Committee or by A-5 K.S. Kropha, Member Convener, Screening Committee much less by any other representative of MOC also takes away the very ground beneath yet another argument put-forth by Ld. Counsels for accused public servants that in the Screening Committee meeting, A-4 H.C. Gupta, and A-5 K.S. Kropha, despite being Chairman, Screening Committee and Member Convener, Screening Committee, respectively, were having no special powers or status and were like any other member of Screening Committee only.
Had it been so then there was no reason as to why both A-4 H.C. Gupta and A-5 K.S. Kropha, did not sign the recommendation sheets qua any of the coal blocks situated in any state. In fact the overall facts and circumstances suggest that MOC being the Nodal Ministry with respect to allocation of coal blocks situated in the country was in fact having a special status in the entire process. Even though the purpose of constituting the Screening Committee was to know the views of all stakeholders at one single platform and thereafter to expedite the entire process but irrespective of the aforesaid purpose for which Screening Committee was constituted, it is clear that the MOC Officers were enjoying a special CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 352 of 467 status in the meeting being representatives of the nodal Ministry.
Moreover was it not the duty of A-4 H.C. Gupta being Chairman of the meeting and of A-5 K.S. Kropha, being the Member- Convener to ensure that the proceedings of Screening Committee takes place in accordance with all rules and regulations and that the guidelines regulating the exercise of discretion by Screening Committee are duly followed and complied with. It has also come on record that the various recommendation sheets were filled by A-6 K.C. Samria himself before members signed them so A-6 K.C. Samria can not disown his responsibility towards ensuring that the recommendation sheets are duly signed by all members present including that of MOC. Since applications were received in the name of Director CA-I Section so A-6 K.C. Samria being an officer of MOC holding a responsible position in MOC and rather forming a crucial link in the chain connecting MOC and the Screening Committee so he can not simply disown his responsibility by shifting his responsibility qua the working of Screening Committee upon A-4 H.C. Gupta and A- 5 K.S. Kropha and in MOC upon CA-I Section officials. His role was distinctly marked by MOC itself as his office was identified as the first place of contact where all the applications form various applicant companies desirous of seeking allocation of captive coal blocks were to be received and further processed. Moreover he was also the Director in-charge of CA-I Section in MOC and which section used to deal with coal block allocation matters.
433. Thus if in the light of aforesaid discussion deposition of PW-
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 353 of 467 12 N.R. Dash, PW-14 Shashi Ranjan Kumar, DW-5 Bhaskar Khulbe and DW-6 Shivraj Singh is seen then it is found that the recommendations made by the Screening Committee and especially as made qua Moira-Madhujore coal block in favour of M/s VMPL can not be stated to be unanimous in any manner.
PW-12 N.R. Dash stated that during the Screening Committee meeting no methodology was adopted to decide the interse priority or interse merits of the applicant companies. He also deposed that neither any point system nor any marking system was adopted by the Screening Committee for deciding the interse merits of the applicant companies. He also deposed that discussion was held in the meeting on the general guidelines only. He also deposed that during the course of discussion whenever any dissent/objection was raised by any member qua any given coal block then the final decision used to be of Secretary, Coal who was chairing the meeting. Even as regard the compilation chart which was stated to have been supplied in the initial meeting of 36 th Screening Committee he stated that the same was a bulky document and was in fact a compilation of the initial pages of the applications only.
In fact PW-12 N.R. Dash while referring to the said compilation primarily referred to the agenda note prepared by MOC qua 36th Screening Committee meetings. He also admitted it to be correct that in his statement u/s 161 Cr.PC, he stated to the IO that the policy objective of Ministry of Steel was to maximize or increase production of steel and that giving a coal block to a company which is CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 354 of 467 in a better category recommended by the Ministry of Steel would satisfy the policy objectives. He further denied having stated to the IO that due weight-age was to be also given to the recommendations of the state governments and stated that he in fact had stated to the IO that recommendations of the state governments were also discussed in the Screening Committee meeting. He also stated that during the course of discussion objections were raised on behalf of Ministry of Steel even though no written dissent note was given. In fact the said statement of his was not even controverted by way of putting any suggestion to the contrary.
434. Similarly PW-14 Shashi Ranjan Kumar who was representing DIPP in the Screening Committee meeting stated that though he had put forward in the meeting, the recommendations of DIPP as were already sent to MOC and also admitted having signed the recommendations sheets but stated that he distinctly remember that in the said meeting no decision was arrived at. He also deposed that no marking system or point system was adopted to be assigned to any given factor and even no methodology was explained to the members as to on what basis the Screening Committee shall arrive at its decision. He also deposed that in none of the meetings of 36 th Screening Committee meeting no interse priority chart or interse merit chart or comparative chart or data base which could have helped in assessing the interse priority/merit of the applicant companies was supplied to the members. He also deposed that the chairman of the Committee i.e. A-4 H.C. Gupta was having the final say in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 355 of 467 meeting. In his cross-examination also he reiterated that in his statement u/s 161 Cr.PC he had stated to the IO that no exact mathematical modeling was adopted for arriving at a decision and meaning thereby that no eligibility criteria was spelled out. In his cross-examination he also deposed that in his statement u/s 161 Cr.PC he had stated to the IO that there were conflicting opinions in the meeting and the reconciliation of the views was done by the MOC. He further stated that though in view of conflicting opinions, the common view point could not have been arrived by reconciliation and thus the final decision was to be taken by MOC. He also deposed that in order to arrive at a common point of view there ought to be some measurable criteria on which various applicant companies would have been ranked. He further stated that if difference of opinion continued in the meeting amongst members then MOC has to arrive at a final decision and the views of the administrative departments could not be binding.
435. In fact DW-6 Shivraj Singh (examined by A-4 H.C. Gupta in his defence) in his deposition stated that while some decisions qua allocation of few coal blocks in favour of certain companies were unanimous but other decisions were taken by way of broad consensus. He stated that in all such cases where there was a difference of views/opinion between State Government representatives and the representatives of administrative Ministry then discussion used to take place and Chairman Screening Committee used to announce the final decision based on broad CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 356 of 467 consensus. He specifically denied that all the decisions taken in the Screening Committee meeting were unanimous.
436. DW-6 Shivraj Singh also stated in his cross-examination conducted by Ld. Sr. P.P. that in the meeting during the course of discussion differing views were expressed by the members present in as much as Central Government representatives were saying that a given coal block be allocated to a company(ies) but the state representatives were saying that it be allocated to a company(ies) proposing to establish their projects in their states. He however admitted that in the minutes no such differing views were mentioned though the concern raised by the state government representatives was duly recorded in the minutes. He also admitted that in the meeting no marking system to be assigned to any given applicant company was adopted and even no interse priority chart/interse data base which could show as to which of the applicant company was better placed for being recommended for allocation of a given coal block was supplied.
437. On similar lines is the deposition of DW-5 Bhaskar Khulbe, the representative of State Government of West Bengal who also was examined on behalf of A-4 H.C. Gupta. In his deposition he also stated that during the course of discussion he had put the views/recommendations of Government of West Bengal qua Moira- Madhujore coal block and the Ministry of Steel had put forward its own views/recommendations. He further stated subsequently that the summed up recommendations of the Screening Committee were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 357 of 467 recorded. He also deposed that after hearing the concerned representatives qua every coal block, the Chairman used to tell as to what is the final recommendation being made by the Screening Committee. In his cross-examination as was conducted by Ld. Counsel for A-5 K.S. Kropha he in answer to a specific question put to him stated that though the recommendations can certainly be termed as recommendations of Screening Committee but to say that the said recommendations were unanimous or consensus based will not be proper. Thereafter in his cross-examination as was conducted by Ld. Sr. P.P. he stated that during the course of meeting held on 03.07.08 no interse priority chart or interse merit chart or interse data chart or any database was provided to the members of Screening Committee from which it could be ascertained as to which of the applicant company was better placed. He also admitted it to be correct that during the course of meeting no document was supplied to members of Screening Committee from which either the suitability of the block to the requirement of the end use plant, or techno- economic viability of the project or level of progress for setting up of end use project by applicant or track record and financial strength of the company could be ascertained. He also stated that no recommendation of Ministry of Steel was even supplied to members of Screening Committee either before or during the course of meeting held on 03.07.08. He further admitted having stated to the IO in his statement u/s 161 Cr.PC the following facts:
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 358 of 467 "MOC had not provided enough inputs to the members of the Screening Committee and that I am of the view that it was the primary decision of the Central Government and we were only aiding the Central Government."
438. He also stated that as the minutes of the meetings were subsequently drawn up and as no discussion on any of the factors which took place in the meeting is mentioned in the minutes, so the facts have been wrongly recorded in the minutes.
439. At this stage it would be also worthwhile to mention that in the minutes Ex. PW 1/L (Colly) it is nowhere mentioned that the recommendations made are unanimous or have been made with the consent of all.
440. Thus in view of the aforesaid nature of deposition of prosecution and defence witnesses coupled with the overall facts and circumstances of the case as have been extensively discussed above and also the fact that mere signing of recommendation sheets do not reflect the unanimity of the Screening Committee members to any given decision so it can not be concluded by any stretch of imagination that recommendations so made by the 36 th Screening Committee meeting held on 03.07.08 were unanimous. Once again to hold to the contrary will amount to a situation where oral claims of the accused MOC officers are being pressed to be accepted as true and correct even though no contemporary record exists and especially when such record ought to have been prepared. The oral claims made by accused MOC officers thus does not inspire confidence at all.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 359 of 467
441. Having thus concluded that the recommendations made by 36th Screening Committee were not unanimous, it will be now also instructive for a proper assessment of the prosecution case to see as to how the minutes Ex. PW 1/N (Colly) (D-11) of 36 th Screening Committee as were subsequently prepared in MOC were processed initially in MOC and subsequently in PMO before they were finally approved by Prime Minister as Minister of Coal.
G (viii) Processing of minutes of 36 th Screening Committee meeting in Ministry of Coal and in PMO leading to approval of the recommendations by Prime Minister as Minister of Coal.
442. As already mentioned the minutes Ex. PW 1/L (Colly) of 36 th Screening Committee were subsequently prepared in MOC in such a cryptic manner that nothing is ascertainable as to what all discussion or views/opinions were expressed by different members in the screening committee meeting. However as earlier also mentioned under the Transaction of Business Rules, 1961 it was the responsibility of Secretary of concerned ministry to reproduce the views/opinions expressed by other ministries whose work is being impacted by the issues being considered by the Nodal Ministry. Mentioning of such views/opinions of all concerned departments/ministries or that of State Governments could only have facilitated the Minister In-charge who in the present case was incidentally the Prime Minister himself to take an objective decision as to whether the matter requires further consideration or in view of conflicting views/opinions of certain ministries or State Governments, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 360 of 467 it requires to be referred to Cabinet or to any of its Committees for appropriate decision, or not. Not only the minutes were completely silent about any such views/opinions expressed by the members but even it has been already discussed and demonstrated at length that the same were even not correctly recorded. The deposition of not only prosecution witnesses but that of defence witnesses examined on behalf of accused public servants themselves amply support the aforesaid conclusion. However, subsequently when the minutes were prepared and processed in MOC vide a detailed note dated 10.07.2008 Ex. PW1/M-1 (D-11) of CA-1 Section then the same got routed through the desk of Sh. R.N. Singh Section Officer, PW 1 Sh. V.S. Rana Under Secretary, CA-1 Section, A-6 K.C. Samria Dy. Secretary, CA-1 Section and A-5 K.S. Kropha Joint Secretary (Coal) before they came to the desk of A-4 H.C. Gupta Secretary (Coal), who also was the Chairman, Screening Committee. Thereafter vide a detailed note dated 14.07.2008 Ex. PW 1/M-2 (D-11) A-4 H.C. Gupta not only approved the minutes but also forwarded the same with recommendations of Screening Committee to Prime Minister as Minister of Coal through the desk of Minister of State for Coal. The file thereafter got cleared from the desk of Minister of State for coal on 14.07.2008 itself. Subsequently when the file was received in PMO then the same was processed by Sh. Ashish Gupta, Director PMO vide his detailed note dated 16.07.2008 [available at note sheet pages 52-58 being part of Ex. PW 10/B (colly) in file Ex. P-34 (colly) (D-11)]. The said note primarily reproduced the notings of MOC while putting up the file to Joint Secretary PMO i.e. PW 10 Ms. Vini CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 361 of 467 Mahajan. The note sheet page 58-59 of the file of PMO further shows that PW 10 Ms. Vini Mahajan thereafter processed the matter vide her detailed note dated 16.07.2008 and submitted the file to Principal Secretary to PMO Sh. T.K.A. Nair. Thereafter, Sh. T.K.A. Nair further forwarded the file to Prime Minister Dr. Manmohan Singh on 16.07.2008 itself and who approved the recommendations of the Screening Committee on 17.07.2008 while approving the note of M/s Vini Mahajan. Accordingly the approval so granted by the Prime Minister as Minister of Coal was conveyed to MOC by Sh. Ashish Gupta vide ID note dated 21.07.2008 Ex. PW 10/C.
443. However, a perusal of the note dated 16.07.2008 put up by PW 10 Ms. Vini Mahajan shows that on 16.07.2008 Principal Secretary to Prime Minister had discussed the matter with Coal Secretary and Steel Secretary and wherein they confirmed that the proposal is based strictly on the merits of the applicants, including the recommendations of State Governments where the blocks are located. The issue regarding modification of Moira-Madhujore Coal Block was also discussed in the said meeting. It was pursuant to the said discussion that the matter was processed in PMO for approval from Prime Minister as Minister of Coal.
444. Thus if the processing of recommendations of Screening Committee initially in MOC and subsequently in PMO is considered in the light of aforesaid notings then it is found that not only while recording the minutes Ex. PW 1/L (colly) (D-11) a conscious effort was made by accused MOC officers to not to mention the reasons or CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 362 of 467 process adopted for recommending company M/s VMPL for allocation of Moira-Madhujore Coal Block but even in the meeting held in PMO with Principal Secretary to Prime Minister it was reiterated by A-4 H.C. Gupta that proposals are based strictly on the merits of the applicants including the recommendations of the State Governments where the blocks are located. Thus when statement made by A-4 H.C. Gupta in the meeting held by Principal Secretary to Prime Minister is seen and examined in the light of over all facts and circumstances of the present case as have been discussed above, than the falsity in the said claims is clearly evident. It was nowhere disclosed either in the minutes or in the meeting at PMO that State Government of West Bengal where the coal block in question was situated had never recommended company M/s VMPL for allocation of any coal block. Similarly, it was also not disclosed as is now being claimed during the course of trial that the said recommendation was primarily on the basis of recommendations of Ministry of Steel. It was also nowhere disclosed that State Government of Bihar was not invited to the Screening Committee meetings and that even comments were also not received from Government of Bihar which could be considered by the Screening Committee. As earlier also mentioned the merits of claims of applicant companies and especially that of A-1 M/s VMPL is also not ascertainable from any of the records prepared at the relevant time, be that of Screening Committee or as were prepared in MOC. The process or procedure, if any adopted in the meeting also does not stands reflected from any such proceedings. In fact when it was claimed by A-4 H.C. Gupta in CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 363 of 467 the meeting at PMO that the proposal is based strictly on merits then as a natural corollary it pre-supposes that the merits of any given applicant company was compared vis-a-vis the claims of other competing applicant companies. It was in this regard only that the interse priority guidelines were issued by MOC. Thus the word "Merit" in itself signifies that same comparative analysis was made amongst the competing applicant companies. However as already discussed that even till today during the course of trial no such comparative merits in favour of company M/s VMPL is ascertainable from the records. It has also been already discussed and demonstrated at length that in the 1 ½ hour long meeting which took place on 03.07.2008 it was impossible for any Committee much less the Screening Committee comprising of representatives of various Administrative Ministries and State Governments to assess the comparative merits of any applicant company [There were 674 companies under consideration for 23 coal blocks.] qua any given coal block from amongst various competing applicant companies that too when no inter se priority chart or inter se merit chart was prepared by MOC prior to the said meeting. The bald submissions made by the accused MOC officers that such an assessment was carried out cannot be believed even for the sake of preponderance of probabilities.
445. In this regard it would be apt to refer to some observations of Hon'ble Supreme Court as were made in para 38-41 in the case Noida Entrepreneurs Association Vs. Noida and others (2011) 6 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 364 of 467 SCC 508 in almost similar circumstances.
"38. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic from of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any rule, it is unpredictable and such a decision is antithesis to a decision taken in accordance with the rule of law.
40. The public trust doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The rule of law is the foundation of a democratic society.
41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. "Public authorities cannot play fast and loose with the powers vested in them." A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this contest, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other."
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 365 of 467
446. It has been however argued on behalf of A-4 H.C. Gupta that Secretary (Steel) had also affirmed in the said meeting that all the decisions were taken on merits. It was argued that since Secretary (Steel) himself was not present in the Screening Committee meeting held on 03.07.2008 so Sh. U.P. Singh, Joint Secretary (Steel) and PW 12 N.R. Dash, Director, Ministry of Steel who were present in the meeting must have so conveyed to Secretary (Steel) and on the basis of such a briefing only he must have stated in the meeting held in PMO that the decisions are based on merits.
447. In this regard, it would be suffice to state that since Secretary (Steel) himself was not present in the meeting and when it has been clearly stated by the witnesses during the course of present trial that during the course of meeting held on 03.07.2008 they had simply put forth recommendations of their respective departments as were already communicated to MOC and thereafter the final decision was announced by Secretary (Coal) so it is quite obvious that members of Screening Committee had no reason at that time to believe that the final decisions of Screening Committee as were being announced by Secretary (Coal) were not based on merits of the applicant companies. This belief further gets reinforced since the recommendations of various State Governments or Administrative Ministries were available only with MOC apart from that with representatives of respective entities and the said recommendations were never shared by MOC with the other members of Screening Committee. Thus when various members of Screening Committee be CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 366 of 467 that representatives of different State Governments or that of Administrative Ministries were having no access to the recommendations made by other entities so there was also no way for them to know as to in favour of which companies recommendations have been made by such other entities. They thus had no reasons to disbelieve the Ministry of Coal officers that the final decisions being announced by them is not on the basis of merits of the applicant companies. Infact from the over all facts and circumstances of the case as have been discussed above, it is also clear that except for the general discussion which took place in the Screening Committee meeting held on 03.07.2008 the representatives of various entities merely reiterated their respective recommendations and no other discussion qua any of the factors on the basis of which interse priority amongst competing applicant companies was to be arrived at, actually took place. Thus having no reason to disbelieve the bonefides of MOC officers, the representatives of Ministry of Steel must have conveyed to Secretary (Steel) that the decisions are based on merits of the applicant companies.
448. The aforesaid facts also needs to be viewed in the light of yet another circumstance. Admittedly the minutes of 36 th Screening Committee meeting were prepared subsequently in MOC. It is also not disputed that the said minutes before they were forwarded by A-4 H.C. Gupta for approval from Prime Minister as Minister of Coal were never circulated to the members of Screening Committee for CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 367 of 467 confirmation. Thus if at all their could have been any reason for the members of Screening Committee to raise any dissenting view that their views/opinions expressed in the meeting have not been recorded or correctly recorded in the meeting, then the said situation never came prior to approval of the recommendations of Screening Committee by Prime Minister as Minister of Coal. Certainly, after the recommendations were got approved from Prime Minister as Minister of Coal there was no occasion left to representatives of various State Governments or Administrative Ministries to express doubt if any was entertained by them. Thus nothing can be read against the case of prosecution or in favour of accused persons from the mere statement made by Secretary, Steel in the meeting held by Principal Secretary to Prime Minister that the proposals are based on merits of the applicant companies and especially when the said meeting took place before the minutes of the Screening Committee were sent to Ministry of Steel by MOC.
449. Infact, A-4 H.C. Gupta knew very well that Prime Minister as Minister In-charge was to act upon the recommendations of the Screening Committee only. The Screening Committee, as earlier also discussed, was in fact constituted to screen all the proposals and to thereafter make the recommendations objectively and in a transparent manner. Moreover, as Secretary (Coal) A-4 H.C. Gupta was not only the Administrative head of the Ministry but was also the Principal Advisor of the Minister-in-charge on all matters of Policy and Administration within his ministry and thus the responsibility on the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 368 of 467 part of A-4 H.C. Gupta was all the more onerous in ensuring that complete and correct facts are placed before Prime Minister as Minister In-charge. There was certainly no apparent reason for Prime Minister as Minister In-charge to disbelieve the minutes or recommendations made by 36th Screening Committee and as were forwarded to PMO by A-4 H.C. Gupta and that too when PW 10 Ms. Vini Mahajan had stated in her note dated 16.07.2008 that the Principal Secretary to Prime Minister has discussed the matter with Secretary Coal and Secretary Steel and they stated that the recommendations are strictly based on merits of the applicants and the recommendations of State Governments where coal blocks in question are located. Prime Minister had thus no reasons to doubt that the said minutes do not contain true and correct facts.
450. Thus from the aforesaid discussion, it is clear that A-4 H.C. Gupta malafidely withheld true and correct facts from the Prime Minister as Minister In-charge by first not recording them in the minutes of Screening Committee meeting and later on by representing in the meeting held in PMO that all the proposals are based strictly on the merits of applicants including the recommendations of the State Governments where the blocks are located.