K.C. HARIKUMAR Vs. GOVERNMENT OF INDIA
LAWS(GJH)-2013-4-145
HIGH COURT OF GUJARAT
Decided on April 22,2013

K.C. Harikumar Appellant
VERSUS
GOVERNMENT OF INDIA Respondents


Referred Judgements :-

SHIV SAGAR TIWARI VS. UNION OF INDIA [REFERRED TO]
VINEETNARAIN VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

J.B.PARDIWALA - (1.)BY this application under Article 226 of the Constitution of India, in the nature of a Public Interest Litigation, the petitioners who are the Executives of the Oil and Natural Gas Commission Limited (for short, 'ONGC') presently working in the State of Gujarat have prayed for the following reliefs :
"12 (A) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the Central Vigilance Commission, Respondent No.2, to proceed with the enquiry into the complaints filed by the petitioners alleging "Corporate Corruption by M/s.ONGC Officers Mahila Samiti (OOMS) controlled by ONGC Management", under Section 8(1)(d) of the CVC Act and take such other and further steps as required under law; (B) To issue any other and further relief in the interest of justice; (C) Pending admission and hearing of this petition, this Hon'ble Court may be pleased to restrain the Respondent No.5 from utilizing the remaining amount of Rs.1,85,69,952.00 held in its account as informed under RTI as per Annexure "G" and also restrain the Respondent No.3 from awarding further contracts or extending the existing contract in respect of the 49 Contractors named in the list."

(2.)FACTS shortly stated may be summed up thus :
(1) According to the petitioners, there is an association of body of the spouses of the ONGC officers and women employees of ONGC in the name of 'ONGC Officers Mahila Samiti' (OOMS). It has been brought to our notice that under the demand and directions of Shri R.S.Sharma, the Chairman and Managing Director of the ONGC, Shri Sudhir Vasudeva, the then Director, Offshore (presently the Chairman and Managing Director, ONGC) and the Directors of the ONGC, several contractors with whom the ONGC carries on regular business have paid a large sum of money to the ONGC Officers Mahila Samiti in the guise of donation and charity. (2) It has also been alleged that such huge amounts were collected from the contractors by Mrs.Rashmi Sharma, the then Chief Patron of the OOMS (now one of the trustees of the OOMS) and managing the affairs of the Samiti. (3) It is the case of the petitioners that such unauthorized illegal fund is collected by the OOMS and it is misused/ misappropriated in connivance with the Board of Directors and other senior executives of the ONGC, which has encouraged wide scale corruption. According to the petitioners, under the RTI, they have been able to get information that a total sum of Rs.3,25,75,000=00 (Rupees Three Crore Twenty-five Lac and Seventy-five Thousand Only) was collected from 49 offshore contractors exclusively working for the ONGC contracts in Bombay Offshore Region by the OOMS. (4) It is also the case of the petitioners that they have reason to believe that the amount referred to above was not just collected from 49 odd contractors whose list has been provided under the RTI, but over and above the 49 contractors, there are many other small and local contractors who have also paid a huge sum to the OOMS under the garb of charity or donation, but such amount has not been shown in the list provided under the RTI. (5) According to the petitioners, any payment of contribution/ donation to any officers of their spouses by the contractors is strictly prohibited under the Rules of the ONGC and, therefore, the act of the OOMS and the contractors attracts the provisions of the Prevention of Corruption Act, 1988 and General Rules 4(1)(a) and 4(2) (a) of the ONGC CDA Regulations. (6) It is alleged that the acts complained are in violation of the Code of Conduct of Senior Management Level Officers of the ONGC and also the provisions under Sections 1 and 2 of the Integrity Pact between the ONGC and Contractors. (7) It is also the case of the petitioners that the OOMS has its registered office at New Delhi and holds the registration as a charitable and social trust. The regular source of funds of the OOMS is stated to be the annual subscription received from the members. The OOMS also has a partnership with the ONGC, in its CSR activities headed by the first lady of the Company being wife of the Chairman and Managing Director, ONGC, as the Chief Patron of the Samiti. (8) It is alleged that the OOMS regularly receives funds/patronage from the ONGC and is substantially financed and controlled by the ONGC for some of the corporate social responsible activities. The annual accounts of the OOMS need to be audited and approved by the ONGC Management as provided by in its bye-laws. Till the year 2008-09, there had been no allocation of funds/grant to the OOMS by the ONGC. However, since Shri R.S.Sharma took over as CMD, the OOMS was adopted as a partner, and in the year 2009-10, an amount of Rs.88.27 lac was given to the OOMS as a grant. This amount was enhanced to Rs.4,11,53,667=00 in the year 2010-11 (during the year of retirement of Shri R.S.Sharma). (9) The ONGC has a CSR fund outlay of 2% of the net profit mandatory under the Government of India directives and this amount is to the tune of Rs.320 crore in F.Y. 2009-10. According to the petitioners, any social welfare activity by the ONGC could have been easily met by the diversion of CSR funds as could be found reflected in the proceedings of EC. (10) It is the case of the petitioners that they have been making representations to the concerned authorities and have requested them to initiate an inquiry into this large scale financial scam. It is also the case of the petitioners that they tried their best to persuade the authorities including the Vigilance of the ONGC, the Central Vigilance Commission and also the Cabinet Secretariats to inquire into the matter so that the amount so collected and held illegally by the OOMS could be returned to the contractors and also to find out the nexus between the top officers of the ONGC and the Multinationals involved. (11) According to the petitioners, they have addressed the following communications to the authorities of the ONGC as well as the Central Vigilance Commission and the Cabinet Secretariats, giving details of such corporate corruption by the ONGC in collusion with the OOMS controlled by the ONGC : (a) Complaint dated 20.9.2010 addressed to Shri P.J.Thomas, the then Central Vigilance Commissioner, New Delhi giving details of corruption in the ONGC : Leading face of Management-Contractor Nexus and the inner cancer of "Science Faking". (b) Complaint under Public Interest disclosure and Protection of Informer Ordinance, dated 21.9.2010 addressed to the Secretary, Central Vigilance Commission, New Delhi. (c) Complaint dated 8.2.2011 addressed to the Chairman and Managing Director, ONGC Ltd., New Delhi regarding Misuse of Executives in extracting donations from offshore contractors by the spouse of the erstwhile CMD, Mrs.RS Sharma. (d) A detailed submission seeking inquiry into the violation of statutes, ONGC CDA Rules, Material Management Guidelines, PCA and FCPA etc., entitled "A case of Corporate Failure in Governance" citing relevant ethical aspects, values and violation of statutes, rules and regulations were submitted on 28th September 2010. (e) A copy of the latest reminder dated 31.10.2011 addressed to Mr.Pradeep Kumar, Chief Vigilance Commissioner, New Delhi on the subject. (12) Vide Office Memorandum No.Conf/2366/10/11 dated 10th December 2010, the Central Vigilance Commission informed Shri Swadeep Singh, Central Vigilance Officer of the ONGC, that the Commission had decided that the matter may be looked into and a detailed report may be sent to the Commission within a period of four weeks. (13) In response to the above, Shri Swadeep Singh, the Chief Vigilance Officer, ONGC, vide his letter No.Vig/16/ 900397/(12)/10-CVO/4026 dated 21.1.11 addressed to the Central Vigilance Commission, New Delhi stated as under : "Please refer to CVC's OM No.Conf/2366/10/112260 dated 10.12.2010 on the subject cited above forwarding therewith a complaint alleging "Corporate Corruption by M/s ONGC Management" for detailed report. In this connection, your kind attention is also invited to this office letter of even number dated 13.1.2011 (F/A&B). 2. In this connection, Vigilance department of ONGC is also in receipt of CVC OM No.PK/D1/01/11/114726 dated 5.1.2011 informing that CVC has decided to conduct a direct inquiry into the matter, in exercise of its powers conferred under Section 8 and 11 of the CVC Act 2003 and that Shri Prabhat Kumar, Director, CVC has been appointed as Direct Inquiry Officer for the same (F/C). 3. As subject matter is now being investigated by CVC, it is understood that Vigilance department of ONGC is not required to act further on the matter in view of this; case has been closed at our end. 4. This is for your kind information and confirmation please." (14) The petitioners have provided a list of the companies who have paid huge sum of money to the OOMS by way of donations. The list provided in the petition is as under : Sr. Name Amount Ch No Ch Date No . 1 Caterpiller Commercial P Ltd. 245000 159529 10.03.201 0 2 Caterpiller Commercial P Ltd. 245000 159530 10.03.201 0 3 Caterpiller Commercial P Ltd. 245000 159532 10.03.201 0 4 Caterpiller Commercial P Ltd. 245000 159533 10.03.201 0 5 Deepwater Drilling and Services P Ltd 490000 88211 04.03.201 0 6 Larsen and Toubro Ltd 980000 27585 05.03.201 0 7 Reliance Industries Ltd 1960000 495700 27.02.201 0 8 Classic Oilfield Supplies and Services P 50000 446260 25.02.201 Ltd 0 9 Classic Oilfield Supplies and Services P 50000 446261 25.02.201 Ltd 0 10 Great Offshore Ltd (Administration 300000 94951 26.02.201 Dept) 0 11 Great Offshore Ltd (Administration 100000 94915 23.02.201 Dept) 0 12 Great Offshore Ltd (Oil and Gas Dept) 100000 196395 26.02.201 0 13 Greatship (India) Ltd 100000 599993 25.02.201 0 14 Greatship (India) Ltd 800000 600008 02.02.201 0 15 Greatship (India) Ltd 200000 600001 26.02.201 0 16 Greatship (India) Ltd 100000 599994 25.02.201 0 17 Hind Offshore P Ltd 300000 282649 26.02.201 0 18 Leighton Contractors (India) P Ltd 1470000 72131 25.02.201 0 19 Leighton Contractors (India) P Ltd 30000 72132 25.02.201 0 20 Maharashtra Seamless Ltd 490000 643401 25.02.201 0 21 M-I Overseas Ltd 300000 454615 28.02.201 0 22 Norscot Drilling and Production Pvt Ltd 300000 380525 26.02.201 0 23 Pipapav Shipyard Ltd 3000000 115083 24.02.201 0 24 Siesmic Solution 700000 52268 02.03.201 0 25 Singh Hindustan Marine P Ltd. 100000 92100 05.03.201 0 26 Sparsh 100000 179497 02.03.201 0 27 Turbotecj Energy Services 300000 861303 12.05.201 International Pvt Ltd 0 28 Aashmore Pvt Ltd 700000 928768 01.03.201 0 29 Aban Offshore Ltd 300000 566179 03.03.201 0 30 Askara Enterprises 300000 544539 26.02.201 0 31 DAS Offshore Engg Pvt Ltd 1500000 31640 22.02.201 0 32 Dolphin Offshore Enterprises (India) 300000 227021 24.02.201 Ltd 0 33 Ertech India 100000 382567 05.03.201 0 34 Essar Offshore Subsea Ltd 100000 825310 25.02.201 0 35 Garware Offshore Services Ltd 700000 421981 24.02.201 0 36 Hercules International Drilling Ltd 100000 636985 25.02.201 0 37 Parveen Industries Pvt Ltd 1500000 489601 24.02.201 0 38 PFS Shipping (I) Ltd 800000 913012 26.02.201 0 39 RPN Engineering 100000 281059 23.02.201 0 40 Seven Islands Shipping Ltd 300000 72499 25.02.201 0 41 Yogayatan Petroleum Pvt Ltd 1500000 540920 02.03.201 0 42 Schulumberger 1500000 RTGS 04.03.201 0 43 Cairn India Ltd 1470000 191 44 BG 1500000 RTGS 18.05.201 0 45 NPCC 3000000 418367 08.06.201 0 Net Donation received 290700 00 Cheques expected to be received 1 CGG Veritas 1500000 2 Sime Derby 500000 3 VMGL 1000000 4 Swiber Offshore 500000 Total 350000 0

It may not be out of place to state at this stage that there is no dispute as regards the list which has been referred to above and the same has been accepted by each of the respondents. In such circumstances referred to above, the petitioners have prayed for an appropriate writ, order or direction on the Central Vigilance Commission to initiate necessary inquiry into the complaints alleging corporate corruption by M/s.OOMS, controlled by the ONGC Management under the provisions of Section 8(1)(d) of the Central Vigilance Commission Act, 2003.

(3.)THE petition is thoroughly misdirected and gives a complete false and incorrect picture of the activities undertaken by the respondent no.5 ­ ONGC Officers Mahila Samiti. Ex facie, it appears to be an attempt to malign the respondent no.5 as well as its office bearers for some oblique motive and for probably trying to show the ONGC officers who are spouses of the members of respondent no.5 in bad light with a malafide intention. It is stated that there is no public interest whatsoever and the present petition be dismissed. The ONGC Officers' Mahila Samiti is an independent body and was registered as ONGC ladies club under the Societies Act in 1982 and was renamed as ONGC Mahila Samiti. The OOMS was registered as charitable and social trust on 21 st December 2007 at Sub-Registrar Officer, Dehradun, having 28 units located at different work centres of the ONGC i.e. Assam and Tripura in the East to Gujarat and Maharashtra in the West and Rajahmundry, Chennai and Karaikal in the South to Dehradun in the North having approximately 2000 members who are wives of the ONGC donors, including the ONGC contractors. Besides, cultural and social activities, of late, the OOMS have taken up CSR projects in a big way, in conformity to the suggestions of the ONGC Management to involve the OOMS in CSR and image building activities. The OOMS have been receiving numerous requests from various sources, including from individual patients suffering with critical ailments and acute diseases for financial help. There were also requests from poor people seeking financial assistance for higher studies, formation of staff help group etc. All such requests were being referred by different units of the OOMS to the Central Executive Committee of the OOMS for sympathetic consideration mostly orally besides some written requests.


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