R.S. Tomar vs The State of Rajasthan and Others

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner has approached this Court assailing the legality and validity of the order (Annex. 7) dated 4.6.2012, whereby sanction was accorded to prosecute the petitioner for the offences under the Prevention of Corruption Act; the order (Annex. 8) dated 4.6.2012, whereby the petitioner was placed under suspension; for restraining the respondents from taking any departmental action against the petitioner and to allow the petitioner to assume charge as the Managing Director of the Bikaner Dairy.

Facts in brief are that the petitioner was posted as the Managing Director of the Jaipur Zila Dugdha Utpadak Sahakari Sangh Ltd. (hereinafter referred to as ''Jaipur Dairy'') in the year 2008. An FIR came to be registered at the Police Station ACB Jaipur on 30.1.2009 against the petitioner and some other officers/employees of the Jaipur Dairy and one Rajendra Gathala being the proprietor of a firm M/s. Choudhary Printers, Vidhyadhar Nagar, Jaipur for the offences under Section 15 of the Prevention of Corruption Act and Section 120B of the IPC. As per the allegations levelled in the FIR, wholesale irregularities and bunglings were committed in the process of inviting tenders for erecting advisement hoardings of the society in the urban and rural areas of Jaipur district. The tender was granted illegally to Shri Rajendra Gathala, being the proprietor of the firm M/s. Choudhary Printers. Investigation was conducted and finding the offences proved, the investigating officer moved the petitioner''s disciplinary authority for grant of prosecution sanction against the petitioner.

The disciplinary authority of the petitioner, being the Managing Director of the RCDF (Rajasthan Cooperative Dairy Federation) gave a notice of hearing to the petitioner. The petitioner as well as the Investigating Officer were heard. The Managing Director after examining the entire record formulated an opinion that no mens rea was reflected in the petitioner''s action and that no loss was caused to the society by any of the petitioner''s directions in the tender process. The bills raised by M/s. Choudhary Printers for preparing the advertisement hoardings were not paid and honoured and thus, no financial loss was caused to the society. He concluded that the investigating agency was unable to satisfy that the petitioner, by his direction and actions in the tender process caused any loss to the cooperative society, and therefore, it was not a fit case to accord sanction to prosecute the petitioner in the case. The said opinion was forwarded to the Principal Secretary of the Animal Husbandry and Dairy Department of the Government of Rajasthan by a letter dated 13.10.2010, which is annexed as Annex. 6 with the instant writ petition. The request of the prosecuting agency to prosecute the petitioner was thus categorically turned down by the disciplinary authority.

However, it appears that after the lapse of some time, the investigating agency again approached the Managing Director by a letter dated 7.5.2012 requesting that sanction be accorded to prosecute the petitioner in the matter. The Managing Director reviewed the matter and formulated an order (Annex. 7) dated 4.6.2012, concluding that the process of granting tenders for erecting the advertisement hoardings to the firm M/s. Choudhary Printers was illegal and was tainted with fraud and conspiracy. Accordingly, the Managing Director approved sanction to prosecute the petitioner for the offences under Sections 13(1)(d), 13(2) and Section 15 of the Prevention of Corruption Act, 1988 and Section 120B of the IPC by order dated 4.6.2012. The petitioner was placed under suspension on the very same day by order (Annex. 8). Both these orders are under challenge in this writ petition.

The principal challenge as laid by the learned counsel for the petitioner to the order (Annex. 7) dated 4.6.2012, whereby sanction was accorded to prosecute the petitioner, was that petitioner''s Appointing Authority being Managing Director by order (Annex. 6) dated 13.10.2010 had already concluded that there was no justification to accord prosecution sanction to proceed against the petitioner but later on, without there being any change in circumstance, the matter was reviewed and sanction was accorded by order (Annex. 7). An additional affidavit has been filed on behalf of the petitioner with certain supporting documents. Amongst the documents filed with the additional affidavit, is the copy of an order purported to have been issued in January 2014 as per which, pursuant to a departmental enquiry instituted against the petitioner on three charges, pertaining to irregularities committed in issuance of tenders for placing advertisements on behalf of the cooperative society, the petitioner was exonerated in the charges No. 2 and 3. Learned counsel placed reliance upon the judgments rendered by the Hon''ble Supreme Court in the cases of State of Himachal Pradesh Vs. Nishant Sareen, AIR 2011 SC 404 : (2011) 1 Crimes 47 : (2011) 1 JCC 36 : (2011) 1 RCR(Criminal) 193 : (2011) AIRSCW 3699 : (2010) 8 Supreme 496 and Subramanian Swamy (Dr.) v. Dr. Manmohan Singh and Anr. reported in 2012(3) RLW 2256(SC) and urged that as the impugned sanction order (Annex. 7) was passed in supersession of the earlier decision (Annex. 6) not to prosecute the petitioner without there being any change in circumstances, the same is ex-facie bad in the eye of law and deserves to be quashed and set aside.

She urged that ex-facie the order (Annex. 8) dated 4.6.2012, whereby the petitioner was placed under suspension is also unsustainable since, the decision to place the petitioner under suspension was influenced totally by the fact that prosecution sanction had been granted against him. Relying upon the judgment rendered by this Court in the case of Samrath Singh Vs. State of Rajasthan and Another, (2010) 2 RLW 1670 , she submitted that the decision to suspend a government employee cannot be influenced by the mere fact that sanction has been granted for prosecuting him for the offence under the Prevention of Corruption Act. She thus prays that the writ petition deserves to be accepted and the orders under challenge should be quashed.

Despite service, nobody has appeared on behalf of the respondent No. 1, Principal Secretary, Animal Husbandry and Dairy Department, Jaipur to oppose the writ petition.

Shri D.K. Parihar, learned counsel has appeared on behalf of the respondent No. 2 and opposed the submissions advanced by the petitioner''s counsel. He urged that the competent authority reviewed the matter because certain new facts were placed before it by the Anti Corruption Bureau and after a thorough application of mind to the facts of the case, prosecution sanction was accorded vide order (Annex. 7) dated 4.6.2012, permitting the petitioner''s prosecution for the offence under the Prevention of Corruption Act. He, therefore, submits that the writ petition itself is premature and the petitioner would be better advised to raise all his objections regarding the order granting sanction before the trial Court at the appropriate stage.

During the course of the hearing of the writ petition, the record of the inquiry instituted against the petitioner was directed to be summoned for the court''s perusal by order dated 4.9.2014. The record has been placed before the Court and upon a perusal thereof, it is evident that for the remaining third charge No. 1 as well, the inquiry officer has reported that the same is not made out against the petitioner.

I have heard the arguments advanced by the learned counsel for the parties and have gone through the impugned orders as well as the record.

The question posed for this Court''s consideration in this case is as to, when once, the competent authority has refused to grant sanction for prosecuting the delinquent, then whether the matter can be reviewed and sanction granted to prosecute the employee without there being any change in circumstance. The Hon''ble Supreme Court examined an identical controversy in the case of State of Himachal Pradesh Vs. Nishant Sareen, AIR 2011 SC 404 : (2011) 1 Crimes 47 : (2011) 1 JCC 36 : (2011) 1 RCR(Criminal) 193 : (2011) AIRSCW 3699 : (2010) 8 Supreme 496 (supra) and held as under:--

"2. The question raised in this appeal, by special leave, is as regards the extent of power vested in the Government in reviewing its order granting or refusing sanction to prosecute the public servant in terms of Section 19 of the Prevention of Corruption Act, 1988 (for short, ''the 1988 Act'').

Nishant Sareen - the respondent - was posted as Drug Inspector, Bilaspur (Himachal Pradesh) in 2005. One, Dr. Ramdhan Sharma, owner of Leelawati Hospital, Ghumarwin lodged a complaint against the respondent in the Vigilance Department of the State Government that the respondent had demanded Rs. 5,000/- from him as bribe to allow him to run the said hospital without checking by the Drug Inspector. Based on the said complaint, a first information report (being No. 1/2005) was registered under Sections 7 and 13 (2) of the 1988 Act at Police Station AC Zone, Bilaspur. Thereafter, a raiding party under the supervision of Deputy Superintendent of Police, AC Zone, Bilaspur was constituted and a trap was laid on May 12, 2005. The respondent is said to have been caught red-handed on that day accepting the bribe from the complainant. The respondent was arrested and produced before the Additional Sessions Judge, Ghumarwin and was remanded to judicial custody upto May 16, 2005. The respondent was released on bail later on. Upon completion of investigation, the Vigilance Department sought for sanction under Section 19 of the 1988 Act from the Government to prosecute the respondent. It is not in dispute that the Principal Secretary (Health), Government of Himachal Pradesh is the competent authority authorized under the Rules of Business for according sanction in the matter.

The Principal Secretary (Health), on the basis of the material placed before her and on examination of the case, found no justification in granting sanction to prosecute the respondent. In the order dated November 27, 2007 whereby sanction was refused, it was observed as under:

"Therefore, after thorough examination of the case taking all the aspects into consideration and scrutiny of the service records it has been concluded that Sh. Sareen in the course of his duties and responsibilities and impartial discharge of his duties (sic). It appears that the complainant has registered a case which appears to be frivolous and has resulted in unnecessary harassment and hindrance in the working of the Drug Inspector. In view of this, there appears to be no justification for launching prosecution against Sh. Nishant Sareen, Drug Inspector as it appears to be a case of Personal enmity."

It appears that the Vigilance Department took up the matter again with the Principal Secretary (Health) for grant of sanction as in their opinion sufficient evidence existed to prosecute the respondent.

The competent authority, thus, reconsidered the matter and granted sanction to prosecute the respondent vide its order dated March 15, 2008. In the sanction order dated March 15, 2008, it was observed thus:

"I agree with the contention of the Vigilance Department that in evaluating the evidence of criminal misconduct, his general conduct and behaviour as perceived by his superiors cannot secure precedence. I have been through the case file and facts of the case in detail. I find that the said Drug Inspector. Sh. Nishant Sareen has been caught red handed, with a bribe of Rs. 5000/-. There is nothing on record to show that this incident did not occur. The facts do not support the contention that Sh. Nishant Sareen was falsely implicated. In the circumstances, I am of the opinion that the prosecution sanction be granted in the instant case and accordingly do so."

Section 19 of the 1988 Act reads as follows:

"S. 19. Previous sanction necessary for prosecution.-

(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974.) -

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay, the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision initiation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub- section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.--For the purposes of this section,-

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, AIR 1997 SC 3400 : (1997) CriLJ 4059 : (1997) 3 Crimes 301 : (1997) 7 JT 695 : (1997) 5 SCALE 667 : (1997) 7 SCC 622 : (1997) SCC(L&S) 1784 : (1997) 3 SCR 705 Supp : (1997) AIRSCW 3478 : (1997) 8 Supreme 178 , this Court observed, ''Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty''. Section 19 or for that matter Section 197 of Code of Criminal Procedure, 1973 (for short, ''the Code'') does not make any express provision regarding review or reconsideration of the matter by the sanctioning authority once such power has been exercised.

In Gopikant Choudhary v. State of Bihar and Ors. (2000) 9 SCC 53 : ( 2000 AIR SCW 4917 ) , initially the concerned Minister refused to accord sanction to prosecute the public servant therein and an order was passed to that effect. Subsequently, after retirement of the public servant, the matter was taken up by the Chief Minister and he granted sanction for prosecution of the concerned public servant. The question that arose for consideration before this Court was the correctness of the order passed by the Chief Minister. This Court set aside the order of the Chief Minister granting sanction to prosecute the public servant, inter alia, on the ground that the Chief Minister did not have any occasion to reconsider the matter and pass fresh order sanctioning the prosecution.

In Romesh Lal Jain Vs. Naginder Singh Rana and Others, AIR 2006 SC 336 : (2005) 9 JT 393 : (2005) 8 SCALE 810 : (2006) 1 SCC 294 : (2006) 1 UJ 217 : (2005) AIRSCW 5875 : (2005) 8 Supreme 106 , it was held by this Court that an order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority. If the complainant or accused can demonstrate such an order granting or refusing sanction to be suffering from non-application of mind, the same may be called in question before the competent court of law.

Recently, in the case of State of Punjab and Another Vs. Mohammed Iqbal Bhatti, (2010) CriLJ 1436 : (2009) 13 JT 180 : (2009) 17 SCC 92 : (2011) 1 SCC(Cri) 949 : (2009) 12 SCR 790 , this Court had an occasion to consider the question whether the State has any power of review in the matter of grant of sanction in terms of Section 197 of the Code. This Court observed as under:

"7. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered."

This Court then noticed the opinion of the High Court which was recorded as follows:

"Once the Government passes the order under Section 19 of the Act or under Section 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official, reviewing such an order on the basis of the same material, which already stood considered, would not be appropriate or permissible."

While affirming the above opinion of the High Court, this Court held in paragraphs 22 and 23 of the Report as under:

"22. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon''ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to."

"23. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise."

It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed The opinion on the same materials, thus may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed be fore the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.

[Emphasis supplied]

Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated March 15, 2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible.

By way of foot-note, we may observe that the investigating agency might have had legitimate grievance about the order dated November 27, 2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority but that was not done. The power of the sanctioning authority being not of continuing character could have been exercised only once on the same materials. 15. There is no merit in this appeal and it is dismissed."

From the ratio of the aforesaid judgment, there cannot be any two views about the proposition that if once after applying mind to the facts and circumstances of the case, the competent authority arrives at a satisfaction that there is no justification to accord sanction against a delinquent employee, then it is not permissible for the same authority to retrace its steps to review the matter and to grant sanction against the employee without there being any change in circumstances.

On going through the order (Annex. 7), whereby sanction has been accorded to prosecute the petitioner, it is evident that the disciplinary authority has simply reviewed the matter on its own on the basis of the same facts and recorded a satisfaction different from the one which had been arrived at by the competent authority while passing the order refusing sanction (Annex. 6) dated 13.10.2010. No new facts have been mentioned in the order dated 4.6.2012 as to why the authority was persuaded to take a different view from the one taken by his predecessor. At this stage, it would be apposite to refer to the reply filed to the writ petition on behalf of the Anti Corruption Bureau. At no place in the reply, it is mentioned that any new facts were placed before the competent authority when the case was taken up to review the issue of grant of prosecution sanction against the petitioner. Ordinarily, this Court would be hesitant to exercise its writ jurisdiction for stifling the prosecution of a corrupt government servant at the inception and for quashing the order passed by the competent authority granting sanction to prosecute such employee. However, coupled with the above observations, there is another very significant development in this case, which persuades the Court to examine the matter minutely for considering as to whether the order (Annex. 7) was as a matter of fact, justified and whether any fresh facts were available before the competent authority to review and overturn the view taken by the predecessor in office. As has been noted above, this Court vide order dated 4.9.2014 had directed the inquiry report to be placed in a sealed condition for its perusal. The inquiry report was produced before this Court in a sealed cover and was opened for perusal. On going through the facts narrated in the inquiry report, it is evident that the charges levelled against the petitioner in the disciplinary inquiry and the allegations levelled against him by the Anti Corruption Bureau are exactly identical. The petitioner had already been exonerated of the charges No. 2 and 3 by order (Annex. 28). The remaining charge No. 1 was in relation to the illegal grant of tenders to M/s. Choudhary Printers. As per the inquiry officer''s conclusions, the petitioner has not been found responsible for the charge No. 1 also. The inquiry officer has concluded that the petitioner, as a matter of fact, by using his business acumen, saved the cooperative society from possible economic loss. Viewed in context of the above development, it is evident that the finding recorded by the competent authority in the order (Annex. 7), that the petitioner facilitated wrongful gain to the private firm M/s. Choudhary Printers and corresponding wrongful loss to the society by his alleged illegal acts in the process of floating tenders for erection of advertisement hoardings has no legs to stand whatsoever. The law is well settled that the standard of proof required to bring home the charges in a departmental proceeding is less stringent than the standard of proof required to bring home the charges in a criminal case. The charges in a departmental proceeding can be proved by preponderance of probabilities whereas, in a criminal case, they are required to be proved beyond all manner of doubt. Of course, mere fact of exoneration in a departmental inquiry cannot be a ground to quash a criminal case instituted on the same facts but this fact added with the circumstance that sanction was once refused by the competent authority is too significant to be ignored.

In the background of the aforesaid factual scenario, this Court is of the opinion that the order (Annex. 7), whereby sanction was accorded to prosecute the petitioner for the offences mentioned above, cannot be sustained as the same is grossly illegal, arbitrary, and unjust.

Accordingly, the writ petition deserves to be and is hereby allowed. The impugned order (Annex. 7) dated 4.6.2012, whereby sanction was accorded for prosecuting the petitioner for the offences under Sections 13(1)(d), 13(2) and Section 15 of the Prevention of Corruption Act, 1988 and Section 120B of the IPC is hereby quashed and set aside. Considering the fact that this Court has quashed the Sanction order (Annex. 7) dated 4.6.2012, the order (Annex. 8) dated 4.6.2012, whereby the petitioner was placed under suspension owing to the grant of prosecution sanction is rendered otiose automatically and is quashed and set aside.

No order as to costs.