KOCHI: In a major breather for Chief Minister Pinarayi Vijayan, the Kerala High Court in on Wednesday upheld the order of the Thiruvananthapuram CBI special court acquitting him and others in the SNC Lavalin graft case.
The 202-page order by Justice P Ubaid was pronounced while dismissing the review petition filed by the CBI challenging the acquittal. However, the Court said that three Kerala State Electricity Board (KSEB) officials K G Rajasekharan, K Sivadas, Kasthury Ranga Iyer would have to face trial.
The CBI had picked and chosen one Minister alone. There was no explanation for not arraigning late G Karthikeyan, the order said.
Senior Supreme Court lawyer Harish Salve, who appeared for Vijayan, had submitted that no one made an undue gain in the SNC Lavalin case. “Pinarayi Vijayan has not in any manner personally benefited in the deal. But the CBI had adopted a different yardstick in the case of Vijayan. It’s a ‘fancy sounding’ charge sheet,” Salve said.
The case, which is over two decades old, is that Pinarayi Vijayan while he was serving as the Kerala Electricity Minister from May 1996 to October 1998, along with the other accused, colluded to award the supply contract for the renovation and modernisation of the Pallivasal, Sengulam, and Panniar hydroelectric projects to Canada’s SNC-Lavalin, bringing a huge loss to the exchequer.
Salve said the CBI adopted a pick-and-choose method to build up a case against Pinarayi Vijayan. The electricity minister could not have finalised anything without the chief minister signing it.
He said that in order to constitute either conspiracy or dishonest intention on the part of Vijayan, an active knowledge about the commission of the offense and voluntary participation are necessary.
The contract for renovation of three power projects was made in good intention. However, CBI is trying to hide it by making false stories. The decision to award a contract to SNC Lavalin was arrived at after holding several discussions, Salve argued.
The government went ahead with the project keeping in mind the power shortage. The State, in fact, is a beneficiary of the deal and the state exchequer has not suffered any loss, he said, pointing out that the proposal to fund the Malabar Cancer Centre (MCC) was not part of the initial agreement. The proposal to fund the cancer centre had come under the scanner.
Salve had pointed out that there are several contradictions in the charge sheet. What Pinarayi did was only following up the project planned by the previous UDF ministry. The hatching of the conspiracy had taken place during 1995, at which time Pinarayi was not even in the picture. The documents produced by CBI revealed that there was no conspiracy existing at the time of entering into the MoU. “There was no element of cheating unearthed in the case from the beginning. If that be so, joining of such a non-existing conspiracy by (Pinarayi) Vijayan and three others subsequently is unsustainable,” Salve submitted.
Even if everything in the Comptroller and Auditor General (CAG) of India’s report in SNC Lavalin is correct, it could not be termed as corruption. Referring to the CBI charge, Harish Salve said that CAG had found lapses in the deal with Lavalin. The allegation that the project was undertaken without conducting any feasibility study was also wrong, he said.
KSEB, which had had a long-standing relationship with Lavalin in the past, decided to execute the MoU. The Lavalin film was the Canadian government appointed engineering consultant on various projects of the KSEB starting from ‘Idukki-1’ in the year 1940, Idukki-2 and Idukki enhancement and switch VAR projects, the extension of Kuttiyadi hydro electric projects, as well as the consultants on the World Bank-financed power projects, and the deciding of the tariff structure. Hence, the allegation that Pinarayi took extra effort and special interests towards Lavalin is baseless, Salve said.
V Rajagopalan, Chairman of the KSEB took charge on February 20, 1996, and continued up to March 26, 1998. Though he was the chairman on the date of actual execution of the original contracts and subsequently also, he was exonerated by the CBI in the charge sheet taking the view that oral and documentary evidence collected did not establish mens rea on his part. “If he has done no wrong, then nobody has done wrong. Rajagopal stated that it was similar to the contract signed for Kuttiyadi extension project,” Salve pointed out.
Pinarayi assumed the office of Minister for electricity during May 1996 and demitted office on October 19, 1998. This was evident from the prosecution’s document that when Pinarayi had assumed charge, the MoU was in force in its original validity period. The MoU had been executed on August 10, 1995. He was not aware of the deliberations made by the previous ministry. It is not fair to blame him for the decisions made by the previous government, Salve told the court.
Late G Karthikeyan was the Minister for Electricity at the time of execution of MoU and execution of consultant’s contract. The CBI had excluded him from the case on the ground that there was lack of evidence against him.
The deal with Lavalin for funding of the Malabar Cancer Centre was only part of the company’s Corporate Social Responsibility, not a commercial one, Salve argued. So the failure in getting funds for MCC is not anyone’s liability. The assistance to establish a cancer hospital at Thalassery was offered by Canadian governmental agencies to the government of Kerala and not to the KSEB, he pointed out. “It’s a government-to-government promise. The fund would not be credited to KSEB,” Salve contended and added that the CSR fund for MCC wasn’t received owing to the failure of the government which succeeded the one in which Pinarayi Vijayan was a minister.