A. Venkata Swamy vs State Central Bureau of Investigation

The petitioner was an Officer of the Corporation Bank (sic for short) in the Middle Management Grade Scale II. He is accused of offences under sections 120B, 467, 468, 479 and 409 IPC and Sections 5(2) read with S. 5(1)(d)(2) of the Prevention of Corruption Act, 1947 (''the Act'' for short) in CC No. 25/89 in the Court of the Special Judge for CBI Cases, Hyderabad, at Secunderabad. Complaint was laid, after obtaining sanction of the Deputy General Manager of the Bank on 23-11-87.

The petitioner sought discharge under S. 239 Cr.P.C. on the ground that proper sanction was not obtained from the competent authority, as required under S. 6(1)(c) of the Act. The learned Judge dismissed the petition holding that the Deputy General Manager, who accorded sanction for prosecution, being competent to remove the petitioner from service, was competent to accord sanction.

The case of the petitioner is that he was appointed as a Clerk in the Bank on 8-5-65 by an order of the General Manager. He was later promoted to the Middle Management in April 1982 by the Chairman of the Board of Directors. Regulations were framed in the year 1982 with regard to discipline and appeals of Officer/employee of the Bank. Though these regulations empower the Deputy General Manager to take disciplinary action against the officers of the cadre of the petitioner and to remove them from service, Deputy General Manager, being lower in rank to the authorities who appointed the petitioner, was not competent to accord sanction for prosecution.

Sri Padmanabha Reddy, appearing for the petitioner submitted that inasmuch as the petitioner was appointed as a clerk by the General Manager and was later promoted to Middle Management by the Chairman of the Board of Directors, the Deputy General Manager was not competent to remove the petitioner from service nor was he empowered to accord sanction for prosecution of the petitioner. In support of his contention, the learned Counsel relied on State of Bank of India Vs. S. Vijaya Kumar, . The petitioner in that case was an employee of the State Bank of India.

Under Regulation 55(2)(a) of the State Bank of India General Regulations, 1955, officers or employees shall not be removed from service of the State Bank by an authority lower than the appointing authority. As that right is a creating of statutory rules and regulations, it was held that the employees of the State Bank can claim such rights as are conferred by the Regulations. It was further held that the date of the order of dismissal, the Chief General Manager had already become the appointing authority and as such, the order of dismissal has not been passed by the authority lower than the appointing authority. In other words, the Supreme Court held that whoever was the appointing authority on the date of the order of dismissal was competent to pass the dismissal order.

Reliance was next placed on Krishna Mohan Mookherjee Vs. Secretary and Treasurer, State Bank of India and Others, , and contended that the appointing authority alone is competent to remove the petitioner and hence, according sanction by the authority lower in rank that of the appointing authority is not valid. The Supreme Court held in that case that there was no breach of regulations as the Superintendent, Staff Section, who passed the order of removal held the rank of General Manager and was duly authorised to take disciplinary action of imposing punishments. The decision in Krishna Kumar Vs. Divisional Assistant Electrical Engineer and Others, relied on by the learned counsel is not helpful to the petitioner, inasmuch as it was a decision rendered under Art. 311(1) of the Constitution of India, and the petitioner therein was holding a Civil post under the Union.

The Corporation Bank Officer Employee''s (Discipline & Appeal) Regulations, 1982 prescribed the disciplinary authority. As per the Schedule, the Deputy General Manager is competent to take disciplinary action against the petitioner and is competent to impose penalty, including removal, under Regulation 7. The contention of the learned Counsel, drawing analogy from Art. 311 of the Constitution of India cannot be accepted in the case of employees/officers of the Bank, who are governed by the Regulations. Such a contention was not accepted by the Supreme Court in State of Bank of India Vs. S. Vijaya Kumar, . The Supreme Court observed thus (at p. 86 of AIR) :

"The right that an officer or employee of the State Bank of India cannot be dismissed from service by authority lower than the appointing authority is a creation of statutory rules and regulations .............

So far as the right or ptoection guaranteed under Art. 311 of the Constitution of India is concerned, it applies to members of Civil servants of the Union or the All India service or a Civil servant of a State or who holds a Civil post under the Union or a State."

Admittedly, the employees of the State Bank do not fall within any one of those categories and they cannot seek any protection under Art. 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regulations.

The learned Counsel for the respondent submitted that the date of taking cognizance by the Magistrate is the relevant date, as S. 6 of the Act inhibits a Court from taking cognizance of an offence punishable under S. 161 or 164 or 165 of IPC or under S. 5(2) or (3)(a) of the Act. He further contended that on the date of taking cognizance, the authority competent to take disciplinary action against the petitioner and to pass orders of removal is the Deputy General Manager, according to the Regulations of the Bank and he was competent to accord sanction for prosecution. In R.S. Nayak Vs. A.R. Antulay, it was observed thus (Para 19) :

"The bar is to the taking cognizance of offence by the Court. Therefore, when the Court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecution the public servant for the offence alleged to have been committed by him as public servant .......... It therefore appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by S. 6 is the date on which the Court is called upon to take cognizance of the offence of which he is accused."

In the case on hand, on the date on which the Magistrate has taken cognizance of the offence, the Regulations were in force and the Deputy General Manager was the authority competent to remove the petitioner from service. So long as the said provision is in force, and is not struck down under Art. 226 of the Constitution, the Court dealing with criminal cases cannot go into the validity of the said Regulation. Under S. 6(1)(c) of the Act, in the case of persons who are not employed in connection with the affairs of the Union or affairs of the State, previous sanction can be granted by the authority competent to remove him from his office.

The order of the learned Magistrate was correct and needs no interference. The revision is accordingly dismissed.

Revision dismissed.