The government cannot continue extending the tenure of the Directorate of Enforcement (ED) chief till the agency completes investigating all crucial cases, observed the Supreme Court on Tuesday after being told that the success achieved in crucial money laundering cases under the present ED director was one of the reasons to extend his tenure by a year.
The court was hearing arguments on a petition filed by NGO Common Cause which has challenged the November 13, 2020 decision of the Government granting Enforcement Director Sanjay Kumar Mishra an extension till November 18, 2021. By an order of November 19, 2018, his tenure was fixed for two years. With just days remaining for the end of his tenure in November 2020, the Government retrospectively modified his tenure to three years in the original appointment order.
Mishra reached his retirement age in May 2020.
Hearing arguments on the petition, the bench of Justices L Nageswara Rao and BR Gavai set out to examine whether the decision to grant three-year tenure was contrary to the 1997 judgment of the Supreme Court laying down a minimum tenure of two years for the heads of ED and Central Bureau of Investigation. The bench also considered whether an extension granted post-retirement would go against Rule 56 of the All India Service Rules which mandates that all government servants retire at 60.
Appearing for the Government, Solicitor General Tushar Mehta said that the Central Vigilance Commission Act was enacted in 2003 and the court’s 1997 decision was incorporated in Section 25(d) which said, “Notwithstanding anything contained in the Foreign Exchange Management Act 1999 or any other law for the time being in force….a Director of Enforcement shall continue to hold office for a period of not less than two years from the date on which he assumes office.”
{{/usCountry}}Appearing for the Government, Solicitor General Tushar Mehta said that the Central Vigilance Commission Act was enacted in 2003 and the court’s 1997 decision was incorporated in Section 25(d) which said, “Notwithstanding anything contained in the Foreign Exchange Management Act 1999 or any other law for the time being in force….a Director of Enforcement shall continue to hold office for a period of not less than two years from the date on which he assumes office.”
{{/usCountry}}He pointed out that while the 1997 judgment provided for a minimum tenure, it did not weigh in on tenure beyond two years. Mehta also added that Section 25(d) of the CVC Act overrides Rule 56.
The appointment was not “haphazard” or based on “whims and fancies of the Government” as projected by the petitioner, Mehta said, adding that a committee headed by the Central Vigilance Commissioner examined Mishra’s professional record of past 10 years before recommending his extension.
“In the last two years (as Director), apart from investigating crucial money laundering cases, a sum of nearly ₹9,000 crore worth proceeds of crime stood deposited in the investigation of three cases involving Vijay Mallya, Nirav Modi and Mehul Choksi,” the Solicitor General said.
The bench replied, “We appreciate that he is doing good work. But you cannot continue with him till all these cases are over. The task of Enforcement Directorate is very important. You cannot leave it to one individual to complete it.”