Delhi High Court
Centre For Public Interest Ligation vs Uoi & Ors. on 27 July, 2009
Author: Manmohan
Bench: Chief Justice, Manmohan
#27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8780/2009
CENTRE FOR PUBLIC
INTEREST LIGATION ..... Petitioner
Through Mr. Prashant Bhushan, Advocate with
Mr. Mayank Misra and Mr. Vivek Bishnoi,
Advocates
versus
UOI & ORS. ..... Respondents
Through Mr. Gopal Subramaniam, SG and
Mr. Parag P. Tripathi, ASG and Mr. A.S.
Chandiok with Ms. Monisha Handa, Mr.
D.S. Mahindra and Mr. Gaurav Duggal,
Advocates for R-1.
Mr. Rajiv Nayyar, Senior Advocate with
Prateek Jalan, Ms. Malvika Trivedi,
Advocate for R-2.
Mr. Maninder Singh, Senior Advocate with
Mr. V.K. Rao, Mr. Saket Sikri and Mr. Ravi
Sikri, Advocates for R-3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
ORDER
% 27.07.2009
1. Present public interest litigation has been filed under Article 226 of the Constitution of India seeking a writ of quo warranto against Chief Executive Officer (in short "CEO") of Prasar Bharati and for initiation of enquiry into the financial irregularities of Prasar Bharati. It has further been prayed that CEO, Prasar Bharati should be directed to function and exercise powers only in accordance with powers delegated to him vide Board Resolution dated 23rd March, 2009 passed by majority of Members of the Prasar Bharati Board.
W.P.(C) 8780/2009 Page 1 of 262. Mr. Prashant Bhushan, learned counsel for petitioner has submitted that CEO does not have any authority to continue in office in view of expiry of his term on 21st April, 2009 on his attaining the age of sixty-
two years as stipulated in the terms of his appointment. He further submitted that CEO does not have the power and authority to perform functions contrary to explicit directions of the Prasar Bharati Board.
3. Mr. Arun Bhatnagar, Chairman, Prasar Bharati Board has filed affidavits in this Court in which he has alleged that the Prasar Bharati Secretariat headed by its CEO has ―attached no importance or priority whatever to the functioning of the Board‖. In fact, in the said affidavits, Mr. Bhatnagar has alleged that the Minutes of Board Meetings have been wrongly recorded and the statements have been falsely attributed to different Board Members. He has further alleged that as there was wide divergence between what transpired in the Board Meetings and as to what the Officer on Special Duty, Shri D. Malvey recorded at the instance of CEO, he and majority of Members of the Board were compelled to record, sign and issue authenticated versions of Minutes of Board meetings.
4. Mr. Rajiv Nayyar, learned Senior Advocate appearing for the Chairman-respondent no. 2 referred to Minutes of Board Meetings held on 21st January, 2009, 16th February, 2009, 23rd March, 2009, 18th May, 2009 and 25th June, 2009 which, he stated, have been confirmed by majority of the Board Members. Relevant extracts of the aforesaid W.P.(C) 8780/2009 Page 2 of 26 Board Meetings as confirmed by the majority of the Board Members are reproduced hereinbelow :-
A) MINUTES OF MEETING HELD ON 21st JANUARY, 2009 Prasar Bharati Broadcasting Corporation of India New Delhi
-----------
th Minutes of the 86 Meeting of the Prasar Bharati Board held on 21st January, 2009 at PB Secretariat, PTI Building, New Delhi.
This Meeting of the Prasar Bharati Board was held on 21st January, 2009 at 10.30 a.m. at the Prasar Bharati Secretariat, PTI Building, New Delhi The following were present :-
(i) Shri Arun Bhatnagar - Chairman, Prasar Bharati
(ii) Shri B.S. Lalli - Chief Executive Officer, Prasar Bharati
(iii) Shri A.K. Jain - Member (Finance), Prasar Bharati
(iv) Shri V. Shivakumar - Member (Personnel), Prasar Bharati
(v) Shri Uday Kumar Varma - Nominated Member (Additional Secretary, Ministry of I&B)
(vi) Shri R.N. Bisaria - Member, Prasar Bharati
(vii) Dr. Sunil Kapoor - Member, Prasar Bharati
(viii)Shri George Varghese - Member, Prasar Bharati
(ix) Lt. Genl. Utpal Bhattacharyya (Retd.) - Member, Prasar Bharati
(x) Shri Sunil Dang - Member, Prasar Bharati [Ms Mamata Shankar, Member, Prasar Bharati was allowed Leave of Absence] [Shri Dhiranjan Malvey, OSD(PBB), was in attendance] xxxxx xxxxx xxxxx
6. Member (Finance) observed that there was total absence of an Internal Audit mechanism and of a system of checks and balances; he expressed doubts about proper scrutiny of financial proposals at the Directorate and Secretariat levels and said that officers with limited financial knowledge, experience and qualifications had been posted in key positions in the Finance Wing [an officer whose appointment was approved (with relaxation by the Board) for the post of Additional Director General (Administration) had been put incharge of the Finance Wing of Doordarshan without possessing any background in Finance.
7. Member (Finance) stated that specific proposals for outsourcing the work of Internal Audit and the appointment of Zonal Auditors (with a Lead Auditor at the Prasar Bharati Headquarters) had been submitted to the CEO nearly two years ago and that, so far despite the importance of the matter, no decision had been reached and the same was still pending.
On an enquiry by the CEO, it was confirmed by Member (Personnel) that a final proposal had been placed (before the CEO several months back.
W.P.(C) 8780/2009 Page 3 of 26Member (Finance) emphasized that the authority of the Board had been eroded and bypassed in matters involving key policy decisions, including those with major financial implications. As such, the ―mismanagement‖ in financial matters had the potential to expose Prasar Bharati to major frauds (and losses) and he felt that responsibility must be fixed for acts of financial impropriety for which the direct accountability lies with the whole-time Members.
8. After further discussions, it was agreed that the proposal relating to the Volume Discount Scheme needed to be examined in greater depth and resubmitted for consideration of the Board, keeping in view the observations of the Members in this behalf.
xxxxx xxxxx xxxxx
23. Intervening in the discussions, the Nominated Member clarified that when, before approving the EOI, the Ministry had asked that the approval of the Board should be obtained, it was intimated by the CEO, Prasar Bharati that the Board's financial powers stood delegated to the CEO. At this juncture, the CEO referred to a decision (purported to have been taken by the Board) delegating all its powers to the Executive Member under Section 5. Responding to this assertion, Member (Finance) said that the Board had passed a Resolution vesting the financial powers of the Board in the Executive Member in the First Meeting held on 10th and 11th December, 1997 but the same was modified, subsequently, in the Special Meeting held on 2nd July, 1998 when the then CEO informed the Members that the exact nature of powers and functions had not been spelt out and he advised the Board to appoint a Sub-Committee to go into the matter and submit recommendations to the Board. The Board had then agreed that the matter may be addressed after the new Chairman had taken over.
24. Further to this Meeting, all major policy decisions, including those which involved financial implications, had invariably been placed before the Board for consideration As such, the ―decision‖ of the First Meeting held in 1997 had to be considered in proper perspective. In any event, the Board would lose its own relevance if the powers were to be vested in any single individual.
25. The Members of the Board objected to not being made aware of any delegation of powers to the CEO and said that since no ambiguity can be allowed to continue, all delegated powers (if any) should stand withdrawn forthwith.
xxxxx xxxxx xxxxx We hereby confirm the Minutes of the 86th meeting of Prasar Bharati Board held on 21.1.2009 as circulated above vide Chairman's letter dated 13th February, 2009 (14 pages as initialled by the Chairman) (Signed) (Signed) (Raj Narain Bisaria) (A.K. Jain) (Signed) (Signed) (V. Shivakumar) (Dr. Sunil Kapoor) (Signed) (Signed) (George Varghese) (Ms. Mamata Shankar) (emphasis supplied) W.P.(C) 8780/2009 Page 4 of 26 B) MINUTES OF MEETING HELD ON 16th FEBRUARY, 2009 Prasar Bharati Broadcasting Corporation of India New Delhi
-----------
Minutes of the Special Meeting of the Prasar Bharati Board held th on 16 February, 2009 at Prasar Bharati Secretariat, PTI Building, New Delhi.
A Special Meeting of the Prasar Bharati Board (convened vide letter No BM-87/OSD/PBB/2009 dated 11th February, 2009) was held on 16th February, 2009 at 11.00 a.m. at the Prasar Bharati Secretariat, PTI Building, New Delhi.
2. The following were present :-
(i) Shri Arun Bhatnagar - Chairman, Prasar Bharati
(ii) Shri B.S. Lalli - Executive Officer (CEO), Prasar Bharati
(iii) Shri A.K. Jain - Member (Finance), Prasar Bharati
(iv) Shri V. Shivakumar - Member (Personnel), Prasar Bharati
(v) Shri Uday Kumar Varma - Nominated Member (Additional Secretary, Ministry of I&B)
(vi) Shri R.N. Bisaria - Member, Prasar Bharati
(vii) Dr. Sunil Kapoor - Member, Prasar Bharati
(viii) Shri George Varghese - Member, Prasar Bharati
(ix) Lt. Genl. Utpal Bhattacharyya (Retd.) - Member, Prasar Bharati
(x) Shri Sunil Dang - Member, Prasar Bharati
(xi) Ms Mamata Shankar - Member, Prasar Bharati [Shri Dhiranjan Malvey, OSD(PBB), was in attendance] xxxxx xxxxx xxxxx
13. Dr Sunil Kapoor and Shri R.N. Bisaria drew attention to the issues relating to ―alleged financial irregularities' which were raised in the 86th Meeting of the Board and pointed out that a Special Meeting was to have been convened on 28th January, 2009 but that no such Meeting was called.
The Chairman said that while the issues raised by the Members were of utmost importance, the item on the Agenda pertaining to the Commonwealth Games Delhi 2010 also warranted early attention. Thereafter, the Agenda of the Special Meeting viz Commonwealth Games Delhi 2010, was taken up for discussion.
xxxxx xxxxx xxxxx
21. Member (Finance) stated that on each occasion vide his notes to the CEO (in May and August, 2008) he had submitted that comprehensive proposals in regard to the delegation of powers ought to be prepared and put up for consideration of the Board-which alone is the competent authority to delegate such powers and to create separate management W.P.(C) 8780/2009 Page 5 of 26 structures. However no action whatever was taken in the matter.
22. Member (Finance) invited attention to the Sanction Order of the Government conveying Cabinet approval to an expenditure for implementing the Commonwealth Games coverage, which stipulated, inter alia, the following conditions :
(a) Prasar Bharati will maintain Separate Account of Income and Expenditure for the Games which would be subject to special audit, as per the EFC recommendations,
(b) Prasar Bharati shall also observe the norms and follow all the relevant instructions including the CVC orders/circulars, GFR 2005 and BFPR, as amended from time to time.
23. Virtually no steps had so far been taken towards maintenance of proper accounts of income and expenditure, as required, and the directions issued to the concerned Officers to comply with these requirements and to furnish the requisite information were not even responded to. Serious instances of financial irregularities in violation of the GFR provisions had already come to light and referred to in the last Meeting of the Board in the matter of implementation of the coverage of the Commonwealth Youth Games, Pune 2008.
24. A prima facie case has been established of non-observance of financial rules, maintenance of accounts, award of contracts (without floating of tenders in violation of the provisions of GFR) and sanctions issued at rates much higher than the existing approved rates. Even though prima facie complicity of others involved in the process was clear and issue of show cause notices, initiation of disciplinary proceedings and suspension of officers was recommended, no action had yet been taken. The Executive Member stated that it is not the practice to initiate action based only on an Audit Report and that the administrative procedures had to be followed. Member (Finance) observed that this interpretation of the rules was incorrect and against the financial interest of the Corporation and that such delays in initiating the action that is called for serves only to facilitate manipulation of records.
xxxxx xxxxx xxxxx
33. Member (Finance) said that the proposals based on vetting of the concerned Wings, including the Finance Wing of the Doordarshan Directorate, was not in conformity with the current GFR/DFPR principles; proposals requiring the approval of the Committee headed by the Executive Member or placed before the Board would need to be submitted, in advance, for concurrence/comments of the Prasar Bharati Secretariat (Finance Wing) before being brought up before the Committees.
34. After further discussions, the Board agreed that the HB Management Committee, as constituted viz. Executive Member, Member (Finance) DG, Doordarshan, DG; AIR and the two E-in-Cs may also include the Member (Personnel) and may be authorized to clear the prequalification of bidders based on evaluation of the bids already received as EOI and the Papers may be submitted to Member (Finance) in advance. It was also decided that a Comprehensive Note keeping in view the issues raised may be brought up for consideration of the Board in the next Meeting.
W.P.(C) 8780/2009 Page 6 of 26xxxxx xxxxx xxxxx
36. Member (Finance) intimated that the Report of the Sub-Committee of the Board constituted earlier to make recommendations in respect of the working of the financial system had submitted the same and he placed copies of the Report for further consideration of the Board.
In conclusion, it was tentatively agreed that the next Meeting of the Board may take place on 2nd and 3rd, March, 2009 (two days).
(emphasis supplied) C) DECISION TAKEN IN THE MEETING HELD ON 23rd MARCH, 2009 RECORD NOTE OF SOME KEY DECISIONS TAKEN BY THE PRASAR BHARATI BOARD IN ITS 88TH MEETING HELD ON 23.3.2009 xxxxx xxxxx xxxxx
4. Soon after the discussions were initiated, CEO left the meeting. Shri R.N. Bisaria, Member, Dr. Sunil Kapoor, Member, Mr. George Varghese, Member, Ms. Mamata Shanker, Member, Shri A.K. Jain, Member (Finance), and Shri V. Shivakumar, Member (Personnel), Shri Uday Varma, Nominated member, Lt. Gen. Utpal Bhattacharya, Member, Shri Sunil Dang (Member), continued the discussions with the Chairman presiding. The Board took the following key decisions after discussion of various issues as raised in the note circulated by the Members :
(a) It was considered necessary to take urgent decisions to streamline the scheme of delegation of powers and also issue appropriate directions in order to ensure smooth and proper functioning of the affairs of the Corporation. In respect of the proposal relating to delegation of powers to the CEO, Member (Finance), Member (Personnel), DG (DDn) and DG (AIR), it was decided that the matter be placed before the Board for discussions in the next meeting on 15 April, 2009.
(b) The next meeting of the Board may be convened immediately to discuss issues relating to urgent matters viz the implementation of the project for production and coverage of Commonwealth Games, financial irregularities as decided in the 86th Meeting of the Board etc. It was decided that the meeting be held on 15 April, 2009. It was also decided that if a notice in this regard is not issued by the Prasar Bharati Secretariat, Chairman may convene the meeting under his orders.
(c) It was decided that the Secretariat of the Prasar Bharati Board shall function under the control and supervision of Member (Personnel). Member (Personnel) shall ensure proper custody and maintenance of the records of Board proceedings as per regulations, reports on action taken in respect of Board decisions in its meetings, issue of notices of the Board meetings and minutes thereof in consultation with the CEO and/or Chairman as provided W.P.(C) 8780/2009 Page 7 of 26 under the regulations. This shall have immediate effect Member (Personnel) may also submit a proposal for consideration of the Board in its next meeting to appoint an officer qualified to work as Company Secretary under the control and supervision of the Member (Personnel).
xxxxx xxxxx xxxxx
(f) The Board, noted and approved the minutes of the 86th. And
Special (87th) meeting of the Board held on 21st Jan 2009 and 16th Feb 2009 respectively as circulated vide Chairman's letter dated 13th Feb 2009 and 16th March, 2009 respectively, under his signatures. However, Lt. Gen Utpal Bhattarcharyya and Mr. Sunil Dang felt that the minutes issued by the Chairman and the CEO separately for the same meeting should be reconciled. Mr. Sunil Dang also stated that some of his observations do not find place in the minutes or were not correctly reflected. Nominated Member felt that if there were any specific objections they may be taken note of. It was decided that Members, if they had any fresh specific point to make, may send their written comments.
5. The note by the six Members at the start of the meeting as stated above was taken on record. After discussion it was decided that so far as other issues were concerned they may be referred to the CEO and shall be considered by the Board in it's next meeting of the Board to be held on 15 April, 2009.
6. The decisions as recorded above were taken by the Board through a majority of the Members present in it's meeting held on 23rd March. Chairman is requested to authentic the above decisions of the Board taken in it's 88th Meeting held on 23rd March 2009 for compliance and issue directions for implementation with immediate effect.
7. The above does not purport to be a complete record of the proceedings of the 88th Meeting of the Board held on 23rd March, 2009 but only seeks to make a record of certain important decisions taken by the Board and which require immediate implementation. The decisions were taken by a majority of the Members.
Signed Signed
George Verghese (Member) R.N. Bisaria (Member)
(Signed) (Signed)
Ms. Mamta Shankar (Member) Dr. Sunil Kapoor (Member)
(Signed) (Signed)
A.K. Jain (Member Finance) V. Shivakumar (Member Personnel) (Not Signed) (Not Signed) Shri Sunil Dang Lt. Gen Utpal Bhattacharya W.P.(C) 8780/2009 Page 8 of 26 D) DECISIONS TAKEN IN THE MEETING HELD ON 18th MAY, 2009 RECORD OF DECISIONS TAKEN IN THE MEETING OF THE BOARD REQUISITONED IN TERMS OF THE PROVISIONS OF SECTION 3(ii) OF THE PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) PROCEDURE AND CONDUCT OF BUSINESS REGULATIONS 2009
-- HELD ON 18TH MAY 2009 -
Members present:
1. Shri Arun Bhatnagar, Chairman
2. Shri B.S. Lalli, CEO
3. Shri A.K. Jain, Member (F)
4. Shri V. Shivakumar, Member (P)
5. Shri R.N. Bisaria, Member
6. Smt. Mamta Shanker, Member
7. Dr. Sunil Kapoor, Member
8. Shri Sunil Dang, Member
9. Lt. Gen. (Retd.) Utpal Bhattacharya, Member xxxxx xxxxxx xxxxxx After discussions, the following resolutions were reiterated and approved for implementation with immediate effect:-
(a) RESOLVED THAT the instances of financial and other irregularities referred in statement, as annexed, be and are hereby referred to the Central Vigilance Commission for enquiry with a request that the enquiry be completed expeditiously.
(b) RESOLVED THAT till such time as a report is received from the Central Vigilance Commission and considered by the Board in respect of the alleged irregularities referred to in resolution at (a) above, all powers delegated by the Board to the CEO, shall be exercised by a sub committee of the Board comprising of the CEO, Member (Finance) and Member (Personnel).
(c) RESOLVED THAT , subject to resolution at (b) above, the delegation of powers of the CEO, Member (Finance), Member (Personnel), Director General (Doordarshan) and Director General (All India Radio) shall be as provided in the table annexed. This delegation is in supercession of all earlier delegations in this regard by the Board, CEO or any other functionary/authority.
(d) RESOLVED THAT for smooth and proper functioning of the Finance and Personnel functions and keeping in view the statutory provisions of their appointment the Finance Wings including the Finance Units at all field units and the Personnel/Administration Wings including Personnel/Administration Wings in Prasar Bharati and its field units be and hereby are placed under the administrative and functional control of Member (Finance) and Member (Personnel) respectively with immediate effect.W.P.(C) 8780/2009 Page 9 of 26
(e) RESOLVED THAT till such time as a report is received from the Central Vigilance Commission and considered by the Board as regards the excessive payments made to them and their alleged nexus with certain functionary(ies) the services of Shri Rajeev Talwar and Shri Kamal Bansal, be not availed off and all cases entrusted to them be withdrawn with immediate effect. The withdrawn cases be redistributed amongst the Standing Counsel(s)/Panel Lawyers by the respective Director Generals (Doordarshan and All India Radio). Payments to the Standing Counsel(s) and Panel Lawyers shall continue to be governed by the Memorandum dated 21.4.2003 and 19.2.2003 respectively.
Xxxxx xxxxxx xxxxxx Five Members out of the nine who were present, constituting a majority of the Members present, approved the above resolutions. Shri B.S. Lalli, CEO objected to the passing of the resolutions. To a query from the CEO specifically about the outcome of the meeting, Chairman stated that the written and signed statement of the Members is already available with him.
(Signed) (Signed)
(Mamata Shankar) (R.N. Bisaria)
Member Member
(Signed) (Signed)
(Dr. Sunil Kapoor) (A.K. Jain)
Member Member (Finance)
(Signed)
(V. Shivakumar )
Member (Personnel)
(emphasis supplied)
ANNEXURES OF ALLEGATIONS OF FINANCIAL AND OTHER IRREGULARITIES IN THE WORKING OF PRASAR BHARATI
1. Certain alleged irregularities in the matters relating to Appointment of Advocates and fees paid to them, Non telecast of T-20 series, irregularities in the contracts relating to cricket rights etc. have come to light. The key allegations are :
a.) Giving opportunity to Nimbus Communications Limited to better the offers made by Prasar Bharati in violation of CVC guidelines.
Nimbus Communications Limited was given the right to better the offer made by Prasar Bharati, if the bid amount of Prasar Bharati turned out to be higher than that of Nimbus Communications Limited.
This happened during the bidding process for the India Bangladesh Series-2007, Indian in Ireland Series-2007, Indian Australia Series-2007 etc. W.P.(C) 8780/2009 Page 10 of 26 On each occasion after the adoption of the sealed bid procedure, the amount offered by Prasar Bharati was higher than the amount offered by Nimbus Communications Limited and Prasar Bharati should have become the Revenue Management Company (RMC) and marketed the signals. However, each time, Nimbus Communications Limited was permitted to better the offer of Prasar Bharati and become the RMC. No such corresponding right was given to Prasar Bharati.
Becoming the RMC enabled Nimbus Communications Limited to enter into package deals with advertisers for both channels (NEO & DD) and show greater consideration amount for advertisements carried on Neo Sports and lesser consideration amount for advertisements carried on Doordarshan.
b.) Violation of Board decision regarding acquisition of Sports Rights being handled by the Empowered Committee on Sports Rights (ECSR).
The Prasar Bharati Board had resolved that matters regarding acquisition of Sports Rights would be dealt with by the Empowered Committee on Sports Rights (ECSR) which would also determine the consideration payable.
During the year 2007 Prasar Bharati had entered into contracts with Nimbus Communications Limited and its associate companies for acquisition of rights for the India Bangladesh Series-2007, India in Ireland Series-2007, India Australia series-2007 etc. The matter was not referred to the ECSR or the Prasar Bharati Board, in violation of the rules for extraneous considerations.
c.) Non telecast of the Twenty-20 World Cup played in 2007 in violation of the Sports Broadcast (Mandatory Sharing of Signals with Prasar Bharati) Act.
In September 2007 the 20-20 World Cup was held in Sought Africa. The rights holder for the World Cup was ESPN. In a meeting of the ECSR held in August 2007 it decided to telecast the matches of the Twenty-20 World Cup, 2007 under the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act in accordance with the mandate of Parliament.
With a view to held ESPN maintain exclusivity and earn huge advertising and subscription revenues, the mandate of the Act of Parliament as well the decision of ECSR was flouted and Doordarshan did not carry the matches.
The result was that the World Cup matches were carried only by ESPN. The World Cup was a money spinner and recorded the highest ever advertising spot rate which has not been surpassed till today. ESPN earned tremendous revenues at the cost of Prasar Bharati and the public for whose benefit the law was enacted by Parliament. The average citizen did not get to see the matches of the World Cup - a World Cup won by India.
d) Engagement of advocates and payment of exhorbitant fees to them in violation of rates prescribed by Prasar Bharati.W.P.(C) 8780/2009 Page 11 of 26
Mr. Rajeev Talwar and Mr. Kamal Bansal have been engaged as advocates since 2007. Payments have been made to them at rates far in excess of rates prescribed by Prasar Bharati.
Mr. Rajeev Talwar raised bills to the tunes of Rs. 31 lac in respect of a litigation concerning the DTH service of Doordarshan spanning over a period of three months. The rate charged was Rs. 33,000 per appearance and Rs. 11,000 per conference. Never has Prasar Bharati made payments at such rates to any standing counsel/panel lawyer nor are the said rates prescribed rates.
The total amount spent on the litigation was in excess of Rs. 85 lac. In violation of law ministry instructions that one payment be made for a batch of cases raising the same issue, separate payments were made for each case in the batch.
In another case filed by Jain TV, Mr. Kamal Bansal and another advocate raised bills for more than Rs. 3 lac for just one hearing. These bills were blindly approved by the then officiating Director General, Ms. Noreen Naqvi without following the prescribed rates.
It is alleged that within a span of one year, payments amounting to more than Rs. 1 crore have been made to Mr. Rajeev Talwar alone for a few cases.
2. Internal Audit It has been brought to the notice by Member (Finance) during the 86th meeting of the Prasar Bharati Board held on 21st January, 2009 that there was total absence of effective internal audit mechanism and a system of checks and balances through out the organization. He expressed doubts about proper scrutiny of financial proposals at the Directorate and Secretariat levels and said that officers with limited financial knowledge, experience and qualifications have been posted in key posts in the Finance Wing.
Member (Finance) also stated that specific proposals for outsourcing the work of Internal Audit and the appointment of Zonal Auditors (with a Lead Auditor at the Prasar Bharati Headquarters) had been submitted to the CEO nearly two years ago and that, so far, despite the importance of the matter, no decision had been reached and the same was still pending. Establishment of an effective internal audit mechanism forms the bed-rock of any sound financial management system. Such an action, deliberate or otherwise, has exposed Prasar Bharati to financial irregularities and frauds of unassessed dimensions.
3. Irregular and unauthorized placement of Fixed Deposits Irregular and unauthorized placement of Fixed Deposits of Rs. 60 cr. during May-June 2007 by the then GM (B&A) at rates much lower than those approved by the Investment Committee causing loss of more than Rs. 50 lakhs to the Corporation without obtaining prior approvals.
4. Irregularities in the fixation of the fees given to the Rights Holder.
In the case relating to determination of the Marketing Rights for Cricket matches which were brought before the Board for its approval in its meeting held on 31st March and which was deferred, glaring irregularities were noticed in the fixation of the fees given to the Rights Holder in violation of past practice and specific decisions of the W.P.(C) 8780/2009 Page 12 of 26 Empowered Committee on Sports without adequate justification. When the files in respect of the Item No. 10 (Radio Broadcast Rights for India Vs. Australia Cricket (2007-08) and Sri-Lanka-India Cricket Series (February-March 2008) and Item No. 11 (Radio Rights for India-Pakistan Cricket Rights) were submitted to Member (Finance), the records maintained in file falsely showed the presence of Member (Finance) in a meeting where it was decided to make a payment of US $ 10000 per match to M/s Nimbus Communications Ltd. for radio rights for India-Pakistan matches. The fee paid was far in excess of the fees paid in the region of US $ 5000 for similar events on earlier occasions leading to possible revenue loss of about 25 lakhs. Also no meeting of the Empowered Committee on Sports Rights, which is Standing Committee constituted by the Board in its 60th Meeting held on 26.05.2004 to consider these issues before bids were made, was convened. This is also a violation of the Board decision in the matter.
It is also observed that the amounts negotiated with and paid to M/s ESPN were higher at US $ 3100 per match which was in violation of the decision taken by the Empowered Committee on Sports in its meeting held on 06.09.2007. In this meeting it had been decided that a fixed offer of US $ 2500 per ODI for broadcast right be made with the observation that any negotiation may not be desirable. However, no action to fix responsibility in the matter has been taken.
5. Financial irregularities, violation of Financial Rules and loss to Prasar Bharati in the expenditure during Commonwealth Youth Games, Pune 2008 In the matter of implementation of the Commonwealth Youth Games, Pune, involving an expenditure of Rs. 8.14 cr., it had been brought to notice that expenditure was incurred on various items without following the financial rules, tender, sanction and verification procedures were disregarded and work was allocated in some cases at exorbitant causing financial loss to the Prasar Bharati. Major irregularities appear to have taken place in matters relating to award of contracts for hiring of vehicles at Doordarshan Directorate, Delhi and hiring of accommodation through Doordarshan, Mumbai. These two contracts involve expenditure in the region of Rs. 1.5 cr. Despite detailed recommendations made for immediate action to issue show cause notices to concerned officials and also divesting the ADG(A&F) Mukesh Sharma of the charge of the Finance Wing for complete failure in discharging the finance function and placing him under suspension for possible complicity in the matter of irregular award of works/contracts.
During the 87th Meeting of the Board held on 16th February, 2009 responding to the observations of Member (Finance) in this regard, the CEO had observed that action can be taken in the matter only after observance of certain administrative procedures. Shockingly no disciplinary proceedings had been initiated even after the lapse of two months compromising the financial interests of Prasar Bharati.
(Not Signed) (Signed)
(George Varghese) (R.N. Bisaria)
Member Member
(Signed) (Signed)
(Mamata Shankar) (Dr. Sunil Kapoor)
Member Member
W.P.(C) 8780/2009 Page 13 of 26
(Signed) (Not Signed)
(A.K. Jain) (V. Shivakumar)
Member (Finance) Member (Personnel)
E. NOTE DATED 25th JUNE, 2009
NOTE BY MEMBERS OF THE PRASAR BHARATI BOARD
We, the undersigned Members of the Prasar Bharati Board, have received a notice informing that the 92nd Meeting of the Prasar Bharati Board will be held on 30th July, 2009 at 11:00 AM. The notice is in contravention of the decision taken in the 91st Meeting of the Prasar Bharati Board held on 25th June where it was decided that 92nd Meeting of the Board would be held on 10th July, 2009 to, inter alia, discuss and considering adopting amendments, if any, with or without modifications, in the resolutions adopted by a majority of the Members of the Board present (five out of nine) in the Requisitioned meeting of the Board held on 18th May, 2009 and confirmed again by a majority of the Board on 25th June, 2009.
2. We regret to note that the issue of the notice in contravention of the Board's decisions marks a continued defiance and disregard of the decisions and authority of the Prasar Bharati Board despite the fact that Shri B.S. Lalli, Executive Member, through his advocate, had also furnished an undertaking in the Delhi High Court that he would comply with the provisions of Section 5 of the Prasar Bharati Act.
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4. In order to address these issues and also matters relating to instances of financial and administrative irregularities, a meeting of the Prasar Bharati Board was requisitioned in terms of Rule 3(2) of the Prasar Bharati( BCI) (Procedure and Conduct of Business) Regulations, 2000. The meeting was held on 18th May, 2009 where the Board, by a majority, (five out of the nine members present, excluding the Chairman) passed specific resolutions to streamline the functioning of the administrative and financial systems and decided, inter alia, that the specific instances of financial and other irregularities referred in a statement placed before the Board be referred to the Central Vigilance Commission for inquiry.
5. A copy of the record of decisions and resolutions passed in the meeting held on 18th May along with a copy of the statement on financial irregularities, duly signed by majority Members present, are at Annexure A. The resolutions were confirmed, as having been adopted, in the meeting of the Prasar Bharati held on 25th June, 2009. The proceedings of this meeting were video graphed in terms of the orders of the Delhi High Court the tapes kept in sealed cover and signed by Member under the orders of the Board.
6. It may be recalled that during the Requisitioned Meeting of the Board on 18th May, 2009, Shri B.S. Lalli, Executive Member, along with two other Members of the Board objected to the conduct of the meeting on the date and kept on raising untenable objections. Other Members were also repeatedly interrupted while speaking. The actions of these W.P.(C) 8780/2009 Page 14 of 26 Members, at times, were directed to target other Members with provocative statements and insinuations, particularly against the Chairman and the lady Member, Ms. Mamata Shankar.
7. During the meeting of the Board held on 25th June on the directions of the Delhi High Court, the Executive Member, maintained a defiant stand even as Members spoke of gross mismanagement, corruption and favoritism and violation of the decisions of the Board and Prasar Bharati Act, Rules and Regulations by him. It may also be recalled that the Executive Member, in violation of the provision of the Prasar Bharati Act, did not issue notice to the Chairman to attend the meeting. When questioned during the meeting, he stated that he had obtained legal opinion in the matter according to which it would not be necessary to invite the Chairman. The Board, rejecting the viewpoint of the Executive Member by a majority, resolved that since Shri Arun Bhatnagar continues to be the Chairman in terms of the provisions of Seciton 7(6) of the Prasar Bharati Act and that a notice be issued inviting him to attend the meeting. The meeting was accordingly adjourned and reconvened at 1430 hours with Shri Bhatnagar in the chair.
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9. The Executive Member also continues to dispute and disregard (on untenable grounds) the correct minutes of the proceedings of the Board of the meetings held on 21st January, 16th February and 23rd March, 2009 as circulated under the signatures of the Chairman and confirmed also by the Board through a majority decision by its Members. The Minutes have also been confirmed and signed under the signatures of six Members of the Board (excluding the Chairman) in order to settle all doubts and issues in the matter. The Executive Member has, however, not taken action to implement most of the decisions arrived therein.
Further, persisting with his conduct, the Executive Member has again got circulated draft minutes of the meeting on 4th May and 18th May, 2009 that do not reflect a true and fair view of the proceedings of the meetings. Many of the key observations made by some of the Members and decisions taken by the Board were not reflected at all or they were misquoted. The draft minutes presented a distorted, one sided and slanted version of the proceedings.
10. A statement bringing out certain specific instances of the violation/non-implementation, by the Executive Member, of the various decisions taken by the Board since the 86th meeting on 21st Jan is enclosed at Annexure B.
11. Illustratively, the Executive Member, during the meeting held on th 25 June under the directions of the Delhi High Court, despite repeated requests from Members of the Board that the minutes book be brought and placed before the Board as required under the rules, continued to defy the Board and did not do so. This was also despite an earlier decision of the Board in its meeting of 16th February, 2009.
The main reason for defiance appears to be that a reading of the minute book, in reference to the decisions taken by Prasar Bharati Board in its first meeting held on 10th December, 1997, would prove a false, the assertion of the Executive Member that the Board had delegated all it's powers to the Executive Member and thereby expose a deliberate attempt by him to mislead the Board and the Government. The actual position W.P.(C) 8780/2009 Page 15 of 26 appears to be that the board never approved that the Executive Member will exercise all the powers of the Board and this needs to be enquired into.
Also, it was decided in the meeting held on 23rd March 2009 that the Secretariat of the Prasar Bharati Board shall function under the control and supervision of the Member (Personnel). However, despite various instructions issued from time to time by the Member (Personnel) to the OSD in the Prasar Bharati Secretariat, Shri D. Malvey, the officer has not complied with the directions, at the behest of the Executive Member, as a result of which the issues relating to the upkeep of record of Board proceedings, preparation of Agenda notices, issue of notices for the meetings etc. the Board decision could not be implemented. In fact, vide his note dated 27th May, 2009, the OSD, (Annexure C) has recorded certain opinions about the discussions in the Board contrary to the discussions and decisions taken, questioning the fact of decisions recorded by a majority of the Board Members, and objected to the issue of directions to him by the Member (Personnel). The OSD concludes by recording that ―It is further requested that Member (Personnel) may not kindly refer such papers to OSD (PBB) who works under CEO'. The remarks of the Member(P) asking the OSD to confirm whether this has the approval of the Executive Member has remained unanswered. The Executive Member too has questioned the actions of the Member (P) during discussions in the Board as being unauthorized and each time it was emphasized by other Members that the actions of the Member(P) were in accordance with the Board decisions. Besides, Action Taken Reports were invariably not presented despite repeated references by Members in different meetings and Minutes not brought up for confirmation on frivolous/contentious grounds.
12. We also regret to state that the Executive Member has adopted a highly vindictive attitude towards the other Whole Time Members. Specific decisions of the Board allowing the functional Members to draw their pay and allowances on the basis of the revised pay scales implemented by the government based on the recommendations of the 6th Pay Commission, subject to their furnishing an undertaking, reimbursement of the LTC claim of Member (Finance) and allowing extension of the lease agreement for the premises hired for Member (Personnel) who has been given notice to vacate the premises immediately due to non-payment of rent, have been deliberately not implemented. This has caused financial loss, mental torture and hardship to the concerned Members and their families. The harassment caused to the functional Members is on account of the mala fide disposition of the Executive Member towards them because they have raised, from time to time, issues relating to administrative and financial irregularities in the Corporation.
13. It is clear to the undersigned that the Executive Member is not functioning in accordance with the provisions of the Prasar Bharati Act and the rules/regulations framed thereunder. Despite specific decisions and directives, Shri B.S. Lalli, Executive Member continues to defy the authority of the Board in contravention of the provisions of Section 3(4), Section 5 and Section 30 of the Prasar Bharati Act. It is also very clear that the Executive Member has refused to convene the 92nd Meeting of the Prasar Bharati Boad on 10th July, 2009, despite the Board's decision, in order to avoid/prevent the implementation of various decisions taken by the Board and in particular the resolutions already passed by it and reconfirmed in the meeting held on 25th June, 2009. The Resolutions adopted and confirmed include a direction to refer various specific W.P.(C) 8780/2009 Page 16 of 26 instances of alleged financial irregularities to the Central Vigilance Commission for an enquiry. These decisions have also been further confirmed by the Chairman under his letter dated 6th July, 2009. A copy of the same is at Annexure D. The letter specifically enjoins upon the Executive Member to take steps to issue timely notice for the 92nd meeting decided to be held on the 10th July and to also implement certain decisions of the Board before such meeting on the 10th as decided. The Executive Member has chosen to disregard this by notifying the meeting to be held on 30th July, giving rise to a reasonable presumption that this is a stratagem to delay the implementation of the Resolutions, which are of significant importance, passed by the Board in its meeting of 18th May and other decisions taken by the Board with reference to a time frame.
14. We, are, therefore, compelled to request that the Chairman inform the Hon'ble Delhi High Court n the proceedings relating to a Public Interest Limitation (PIL) and where the Prasar Bharati has been impleaded as one of the respondents, through the Chairman, of these developments we may also seek directions of the Delhi High Court to the Executive Member for implementing immediately, and without demur, the decisions of the Board as per the enclosed statement (which have also been conveyed under the signatures of the Chairman) and also the resolution is passed by it in its meeting held on 18th May, 2009 as already confirmed and circulated vide the letter of the Chairman dated 6th July. Directions may also be requested on the contents of para 8 of this note, in addition to such other directions as deemed proper under the circumstances of the matter.
15. Chairman is requested to kindly take necessary action in terms of the above.
(Signed) (Signed)
Shri R.N.Bisara (Member) Dr. Sunil Kapoor (Member)
(Signed) (Signed)
Mrs. Mamata Shankar (Member) Shri A.K. Jain (Member, Finance)
(Signed)
Shri V. Shivakumar (Member Personnel)
(emphasis supplied)
5. The Union of India has filed a short affidavit contending that in view of Prasar Bharati (Broadcasting Corporation of India) Amendment Act, 2008 (hereinafter referred to as " Amendment Act, 2008), the CEO can continue in office for a period of five years or until he attains the age of sixty-five years. It has further been stated that a clarificatory note was issued on 20th April, 2009 conveying revised W.P.(C) 8780/2009 Page 17 of 26 terms of appointment of Mr B.S. Lalli, Executive Member of Prasar Bharati in accordance with Sub-section (2A) of Section 6 of Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter referred to as "Act, 1990").
6. Mr. Gopal Subramaniam, learned Solicitor General appearing for Union of India strongly refuted petitioner's allegation that Government was in hand in glove with CEO, Mr. B.S. Lalli. He was at pains to point out that in the dispute between the Board Members and CEO, Union of India did not want to support any particular side.
Mr. Subramaniam stated that Union of India, respecting the statutory autonomy of Prasar Bharati, had not taken any action till date. He was the opinion that issues raised in the present petition could be amicably resolved if a Board Meeting of Prasar Bharati comprising Chairman and CEO is convened in the presence of a law officer. In the alternative, he sought leave of this Court for the Government to intervene in the matter as according to him, public trust and confidence should be immediately restored in a statutory corporation like Prasar Bharati.
7. CEO-respondent no. 3 has filed a detailed affidavit in which he has stated that Minutes of all Board Meetings have been prepared by an officer on special duty in accordance with what has transpired in the Board Meetings as reflected in the audio tapes. He stated that he is entitled to continue in office as CEO of Prasar Bharati in view of the W.P.(C) 8780/2009 Page 18 of 26 Amendment Act, 2008. He further stated that the present writ petition was motivated at the instance of one of the Board Members.
8. Mr. Maninder Singh, learned Senior Counsel appearing for respondent no. 3 strenuously argued that the Minutes of Board Meetings as recorded by the Chairman and as reproduced hereinabove are not correct as they are not in conformity with the audio tapes of Board Meetings.
9. The matter took rather a serious turn when we were informed that the respondent no. 2-Chairman, Prasar Bharati vide his letter dated 18 th May, 2009 had submitted his resignation. In fact, in a letter addressed to the Prime Minister of India dated 20th May, 2009 the Chairman, Prasar Bharati stated ―Over the recent months, it has become increasingly difficult for me to address the proper functioning of the Board and I am therefore, compelled to quit well before the expiry of my term on 30th April, 2011.‖
10. On 29th May, 2009 when the matter was taken up for hearing, learned Senior Counsel appearing for respondent no. 3-CEO assured this Court that the CEO would function strictly in accordance with Section 5 of the Act, 1990 and he would act only in accordance with Resolutions passed by the Board. Consequently, this Court ordered CEO to convene a Board Meeting within a period of four weeks with a further direction to have the same video-tapped.
W.P.(C) 8780/2009 Page 19 of 2611. Though the resignation of the Chairman, Prasar Bharati had not been accepted, CEO convened a Board Meeting on 25th June, 2009 without giving any notice to the Chairman. This was despite the fact that Section 7(6) of Act, 1990 clearly stipulates that office of Chairman shall be deemed to have been vacated only upon Chairman's resignation "being accepted".
12. Moreover, the Chairman has filed an affidavit on 10th July, 2009 pointing out that, notwithstanding the intervention of this Court, the decisions and directions of Prasar Bharati Board are not being complied with. To illustrate the allegations of non-compliance, the Chairman in his affidavit has given the following instances :-
(i) Little notice has been taken of the alleged financial irregularities and complaints of corruption and of the constructive suggestions offered from time to time in respect of the quality of programmes, personnel matters and the like.
(ii) That despite the repeated requests of the Members, the Minutes Book has not been placed before the Board, as required under the Rules.
(iii) That most of the decisions reached by the Board over a period of time, await compliance, including of the recent Meetings of the Board.
(emphasis supplied)
13. In the said affidavit, Chairman has further pointed out that in the Board Meeting held on 25th June, 2009, it was unanimously agreed that the next meeting would be held on 10th July, 2009. He stated that without seeking convenience of the Chairman, next Board Meeting W.P.(C) 8780/2009 Page 20 of 26 had been re-scheduled by the CEO for 30th July, 2009.
14. CEO in response to the aforesaid affidavit of Chairman has reiterated that minutes of the Board Meeting as relied upon by the Chairman are contrary to audio and video tapes. He also stated that the Chairman had agreed to convene the next Board Meeting on 30th July, 2009. He further contended that it was only in view of the legal advice received that he had not issued notice of the 25 th June, 2009 Board Meeting to the Chairman. In this affidavit dated 21st July, 2009, the CEO has repeatedly stressed that ‗some members [of the Board] holding a very slender majority are working in tandem to weaken the office of the Answering Respondent for their own personal interests'.
15. From the aforesaid affidavits, it is apparent that despite the statement made by learned Senior Counsel for CEO dated 29th May, 2009, the stalemate and impasse in Prasar Bharati Corporation still continues.
Not only have two sets of Board Resolutions been prepared, but also in view of the CEO's stance that he is not bound by decisions of slender majority of Prasar Bharati, we are left with no other option but to pass immediate interim directions. We may mention that keeping in view the statutory autonomy granted to Prasar Bharati Corporation, we cannot accept Mr. Gopal Subramaniam's suggestion that Government should be granted leave to intervene into the matter. In fact, we appreciate the Union of India's decision of respecting the statutory autonomy, by not taking any precipitate action till date.
W.P.(C) 8780/2009 Page 21 of 2616. Moreover, having regard to the Act, 1990, we are of the opinion that the intent of Parliament was to create a Board managed autonomous corporation whose CEO would function subject to the control and supervision of the Board. In this connection, we may refer to preamble as well as the relevant Sections of the Act, 1990 and Prasar Bharati (Broadcasting Corporation of India) (Procedure and Conduct of Business) Regulations, 2000 (hereinafter referred to as "Regulations, 2000) which are reproduced hereinbelow :-
THE PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) ACT, 1990 INTRODUCTION To confer autonomy on Akashvani and Doordarshan so that they may function in a fair, objective and creative manner, it was proposed to provide for the establishment of an autonomous corporation and to entrust to it functions which are discharged by Akashvani and Doordarshan. The proposed Corporation would function as a genuinely autonomous body, innovative, dynamic and flexible-with a degree of credibility. It would function in a democratic manner which enriches our democratic traditions and institutions, being responsible to the people and Parliament and keeping in mind the variegated traditions, languages and cultures of the country. Accordingly the Prasar Bharati (Broadcasting Corporation of India) Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS It is the Government's declared policy to confer autonomy on Akashvani and Doordarshan thereby ensuring that they function in a fair, objective and creative manner. In this context that it is proposed to provide for the establishment of an autonomous Corporation to be known as ‗Prasar Bharati' (Broadcasting Corporation of Indian) and to entrust to it the functions which are discharged by Akashvani and Doordarshan. The intention is that the proposed Corporation should function as a genuinely autonomous body innovative, dynamic and flexible - with a high degree of credibility. It must function in a democratic manner which enriches our democratic traditions and institutions, being responsible to the people and Parliament of India and keeping in mind the variegated traditions, languages and cultures of the country.
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3. Establishment and composition of Corporation.--(1) With effect from such date as the Central Government may by notification appoint in this behalf, there shall be established for the purposes of this Act a Corporation, to be known as the Prasar Bharati (Broadcasting Corporation of India).
W.P.(C) 8780/2009 Page 22 of 26xxxxx xxxxxx xxxxxx (4) The general superintendence, direction and management of the affairs of the Corporation shall vest in the Prasar Bharati Board which may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation under this Act.
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5. Powers and functions of Executive Member.--(1) The Executive Member shall be the Chief Executive of the Corporation and shall, subject to the control and supervision of the Board, exercise such power and discharge such functions of the Board as it may delegate to him.
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8. Meetings of Board.--(1) The Board shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at meetings) as may be provided by regulations:
Provided that there shall not be less than six meetings every year but three months shall not intervene between one meeting and the next meeting.
xxxxx xxxxxx xxxxxx (4) All questions which come up before any meeting of the Board shall be decided by a majority of the votes of the Members present and voting and, in the event of an equality of votes, the Chairman, or in his absence, the person presiding, shall have and exercise a second or casting vote.
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29. Authentication of orders and other Instruments of Corporation.--All orders and decisions of the Corporation shall be authenticated by the signature of the Chairman or any other Member authorised by the Corporation in this behalf and all other instruments executed by the Corporation shall be authenticated by the signature of the Executive Member or by any officer of the Corporation authorised by him in this behalf.
30. Delegation of Powers.--The Corporation may, by general or special order, delegate to the Chairman or any other Member or to any officer of the Corporation, subject to such conditions and limitations, if any, as may be specified therein, such of its powers and duties under this Act as it may deem fit.
(emphasis supplied) PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) (PROCEDURE AND CONDUCT OF BUSINESS) REGULATIONS, 2000
3. Date, time and place of meetings of Board :-
(1) The date, time and place of a meeting of the Board shall be fixed by the Executive Member, after ascertaining the convenience of the Chairman, by a general or special order passed in that behalf.
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W.P.(C) 8780/2009 Page 23 of 26
10. Method of Deciding Matters:
(1) Subject to the provisions of the Act and the rules made thereunder,
all matters which come up before any meeting of the Board shall be decided by a majority of votes, by voice, or, if necessary, by show of hands, of the Members present and voting, and, in the event of equality of votes, the Chairman, or on his absence, the Member presiding, shall have and exercise a second or casting vote.
xxxxx xxxxx xxxxx (3) In the event of any decision at a meeting of the Board being not unanimous, the divergent views shall be recorded in the minutes book.
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12. Recording of Minutes :
(1) Minutes, in which shall be recorded the names of the Members
present, of the proceedings of each meeting of the Board shall be drawn up and recorded in a book to be kept for that purpose. It shall be laid before the ensuing meeting of the Board and signed at such meeting by the Presiding Officer and the Executive Member.
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(4) If any member present draws the attention of the meeting to an
error or omission in the minutes of the previous meeting, such correction shall be made therein, as the Chairman, or in his absence, the Executive Member, after taking the sense of the meeting, deems fit.
(emphasis supplied)
17. We are prima facie of the view that Minutes of the Board Meetings referred to by Mr. Rajiv Nayyar and reproduced hereinabove have been approved by majority of Board Members as would be apparent from the following:-
S. No. Date of Minutes Remarks
1. 21.01.2009 Confirmed by Six Members excluding
Chairman
2. 16.02.2009 Confirmed by Six Members excluding
Chairman
3. 23.03.2009 Confirmed by Six Members excluding
Chairman
4. 18.05.2009 Confirmed by Five Members excluding
Chairman and agreed to by Chairman
5. 25.06.2009 Confirmed by Five Members excluding
Chairman and agreed to by Chairman
18. We are also of the opinion that keeping in view the unjustified attitude of CEO, as would be apparent from his last affidavit dated 21st July, W.P.(C) 8780/2009 Page 24 of 26 2009 in which he has repeatedly stated that some members holding slender majority are trying to weaken his office, no useful purpose would be served by convening a Board meeting under the supervision of a senior law officer. Moreover, as very serious allegations of financial mis-management have been made in the present matter, we in the interim issue the following directions :-
(a) Minutes of meetings of the Board dated 21.01.2009; 16.02.2009;
23.03.2009; 18.05.2009 and 25.06.2009, as authenticated by the signature of the Chairman, (as they are confirmed by the majority) be implemented forthwith in view of Section 29 of the Act read with Regulation 12(4) of Regulations, 2000.
(b) To ensure that the Resolutions already passed by the Board on 21.01.2009; 16.02.2009; 23.03.2009; 18.05.2009 and 25.06.2009 are implemented, the Executive Member is directed to prepare a compliance report which after being confirmed by the Chairman would be submitted before this Hon'ble Court within 15 days. In respect of future meetings, similar compliance report be submitted before the Court within 10 days of each meeting.
(c) The minutes book of the Board be deposited in this Court immediately in view of Regulation 12 of Regulations, 2000.
(d) The next meeting of the Board be fixed within 15 days. The date, time and place of this meeting and all future meetings be fixed by the Executive Member. In order to ensure that there is no further controversy regarding compliance with Regulation 3(1) of the Regulations, 2000, written consent of the Chairman be taken prior to W.P.(C) 8780/2009 Page 25 of 26 notifying the meeting and the agenda will also be circulated in advance. Meetings of the Board be videographed and Mr. Justice J.P. Singh (Retd.) is appointed as an independent observer to submit a report if there is any dispute regarding the minutes circulated by the Chairman in terms of Section 29.
(e) The allegations regarding financial and administrative irregularities etc. are referred to the Central Vigilance Commission for appropriate investigation and report.
(f) Day-to-day functioning would be carried out by three whole-time Members, namely, CEO, Member (Finance) and Member (Personnel) jointly in terms of Section 5 and Section 30 of the Act.
After the order was passed, we were informed in the open Court by Mr. Rajiv Nayyar, learned Senior Counsel for R-2/Chairman that a Board Meeting has been fixed by the Executive Member on 30th July, 2009 without complying with Regulation 3(1) of the Regulations, 2000. The said meeting stands cancelled. The Executive Member is directed to convene a fresh meeting in accordance with the directions issued in the present order.
Let the matter be listed for further hearing on 25th August, 2009.
Order dasti.
CHIEF JUSTICE MANMOHAN, J JULY 27, 2009 rn W.P.(C) 8780/2009 Page 26 of 26