K.V. BRAHMAJI RAO Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner filed present petitions bearing no W.P. (Crl.) 3609/2018 and W.P. (Crl.) 43/2019 for issuance of writ of certiorari and/or any other appropriate writ against the respondents to produce the entire records pertaining to Sanction Orders dtd. 12/10/2018 bearing no F.No.5/1/2018-Vig by which sanctions were accorded to prosecute the petitioner in the CBI Cases bearing no. RC. 1(E)/2018- CBI/BS&FC/MUMBAI arising out of FIR No. RC BSM 2018 E 0001Year 2018 and RC.2(E)/2018-CBI/BS&FC/MUMBAI arising out of FIR No. RC BSM 2018 E 0002 Year 2018 respectively and to quash Sanction Orders dtd. 12/10/2018 being illegal, unwarranted and based on non-application of mind.

(2.) The petitioner in writ petitions bearing no W.P. (Crl.) 3609/2018 and W.P. (Crl.) 43/2019 pleaded that he was appointed Executive Director in Punjab National Bank (herein after referred to as "PNB") vide notification dtd. 22/1/2014 bearing no F.N0.4/5/2OI2-BO-1 issued by Department of Financial Services, Ministry of Finance, Government of India and was given additional charge as domain Executive Director of International Banking Division (IBD) with effect from 1/4/2016 vide letter 28/3/2016. A RBI circular dtd. 3/8/2016 was received with recommendation to get the SWIFT infrastructure comprehensively audited for malicious software script/activities and to take appropriate steps to rectify malicious activity and to patch vulnerabilities, if any, in the SWIFT IT infrastructure. It was further directed to take steps to ensure strict vigil on the transactions made through SWIFT infrastructure besides other directions. The petitioner promptly acted on circular dated 03. 08.2016 and convened necessary meeting urgently which was attended by top officials from different departments including Information Technology Division (ITD), International Business Division (IBD), and Treasury Division to effectively implement the measures suggested by the Reserve Bank of India (RBI). Thereafter, various measures were initiated to effectively implement the recommendations of the RBI circular dtd.3/8/2016 and one of the key measures was to integrate SWIFT with CBS to mitigate the risk which was foreseen in manual message creation. The Information Technology (IT) Division was directed to implement the integration immediately and Information technology (IT) Division was headed by another Executive Director (ED) and Information Technology (IT) Division has never been under the domain of the petitioner during his entire tenure in PNB. The Information Technology Department (ITD) took the decision unilaterally without concurrence or information to IBD division to integrate SWIFT with CBS along with upgradation of software, namely, 'Finacle' to Version 10 X. The Information Technology Department placed a note dtd. 23/8/2017 to MD & CEO through their domain ED wherein it was proposed and agreed upon by MD & CEO to integrate SWIFT system with CBS during upgradation of Finacle to version 10 X. Therefore, the decision to delay implementation of suggestion of RBI was approved at the highest level in the bank which was beyond the jurisdiction of the petitioner and work profile. However, any tampering therewith could have serious ramifications including complete cessation of international banking transaction of the bank. The petitioner came to know at a very later stage about the decision to defer the implementation taken by Information Technology Department (ITD) and by then IBD was not under the domain of the petitioner with effect from 18/9/2016.The petitioner held the portfolio only for a period of 42 days after issuance of RBI's recommendations dtd. 3/8/2018. RBI on 27/10/2016 issued an urgent questionnaire to PNB seeking information on SWIFT system being implemented by it and about implementation of various recommendations made by RBI in its earlier circulars. Nehal Ahad, then (General Manager, IBD) sent compliance letter to RBI on 31/10/2016 but the petitioner was already discharged from responsibilities of IBD on 18/9/2016 and as such, the compliance was not issued with his concurrence/approval. RBI on 25/11/2016 issued yet another circular pertaining to SWIFT System being operated by banks. Gokulnath Shetty, Deputy Manager, PNB, Mid Corporate Branch, Brady House, Mumbai superannuated on 31/5/2017 after having served in the branch since April, 2010 being in-charge of FOREX (Foreign Exchange) i.e. work related to Import/Export, Buyers Credit, Foreign Letters of Credit, Transmission of SWIFT messages etc.

(3.) The respondent no 1 filed counter affidavit in writ petitions bearing no W.P. (Crl.) 3609/2018 and W.P. (Crl.) 43/2019 wherein in preliminary submissions it is stated that order for sanction for prosecution of the petitioner was granted after careful examination of facts, records, CBI Report and in consultation with the respondent no 2/Central Vigilance Commission. The Competent Authority has considered all material such as, FIR, the complaints, relied upon documents, copies of statements of witnesses recorded by the CBI, the advice of the CentralVigilance Commission and other materials. The Sanction Orders do not suffer from the vice of non-application of mind. The prescribed procedure as per applicable guidelines of Department of Personnel and Training (DoPT) and as laid down in the Vigilance Manual 2017 issued by the Central Vigilance Commission (CVC) has been followed at time of issuing of sanction for prosecution in respect of the petitioner the and the same was conveyed to the respondent no 3/CBI with the approval of the Competent Authority. The sanction for prosecution is a standard requirement in terms of provisions of the PC Act and the Code. The present petitions are premature as the case is pending before the Special Court, CBI.The respondent no.1 in counter affidavits also mentioned factual background of the case.