By TIOL News Service

NEW DELHI, JAN 08, 2019 - The issue before the Apex Court is - Whether the expression 'transfer' in section 4B of the DSPE Act, 1946 also means to include actions which impacts the functioning of the CBI Director and not just a traditional transfer. YES IS THE VERDICT.

Facts of the case:

The petitioner is the director of the CBI against whom a case of bribery has been made. The complaint regarding bribery was brought forth by the Cabinet Secretary on a complaint received against the Petitioner. The complaint was forwarded to the CVC which initiated the enquiry. During the investigation process, the petitioner made specific allegations against one Rakesh Asthana who is the Special Director, CBI. In light of the entanglements of the corruptions charges, in October, 2018 the CVC issued an interim order against the petitioner divesting him of the powers and functions in respect of the office of the Director, CBI. This interim order was followed by two orders of the DoPT, one which carried the same effect as the interim order of CVC and second appointing one M. Nageshwar Rao as the interim Director of the CBI. The petitioner challenged the three orders. The petition is joined by another petition of one Common Cause which submitted additional prayers to constitute a SIT to probe into corruption by the officers in the CBI and removal of the Special Director, CBI.

In Writ the Apex Court held that,

++ in light of the observation made in the case of Vineet Narain and others vs. UOI and anr, an indepth consideration of Section 4A and Section 4B of the DSPE provides the clear legislative intent. This intent is rooted in the purpose of ensuring complete insulation of the office of the Director, CBI from all kinds of extraneous influences as well as for upholding the integrity and independence of the institution of the CBI as a whole. Section 4A(1) of the DSPE Act establishes a committee for the appointment of the Director of the CBI and section 4B(2) provides that “ the Director shall not be transferred except with the previous consent of the Committee”,

++ the term 'transfer', as used in section 4B of the DSPE Act, cannot be understood in its traditional sense and must be interpreted as including actions which impact the functioning of the CBI Director. If the word “transferred” has to be understood in its ordinary parlance then such an interpretation would be self-defeating and would clearly negate the legislative intent. Thus, any order giving rise to a compelling necessity affecting the high position of the CBI must be tested by the opinion of the Committee constituted under Section 4A(1) of the DSPE Act. Thus the orders of the CVC and DoPT should be set aside as not fulfilling the test of legislative intent,

++ additionally, as the issue of divestment of power and authority of the Director, CBI is still open for consideration by the Committee, it was directed that until the time the investigation completes, the petitioner was to cease and desist from taking any major policy decisions and will be confined only to the exercise of the ongoing routine functions.

(See 2019-TIOL-13-SC-SERVICE-LB)