Sushil Bhanot & Ors. vs State

Controversy in this revision petition lies in a narrow compass.

The petitioners are being tried by Special Judge, AntiCorruption, Jammu, for offences, amongst others, under sections 161 R P. C. and 5(2) of

the Prevention of Corruption Act. 2006 hereinafter to be referred to as the Act Out of them only the second and the third petitioner, namely, Kikar

Singh and Swami Raj are Government employees, sanction to prosecute whom for the aforesaid offence in terms of Section 6 of the Act. has been

granted by the Government vide its order No; 44IO&M/VIG of 1979 dated 25111979, The petitioners have challenged the competency of the

Special Judge to try them on two grounds: one, that the trial is violative of Article 14 of the Constitution, inasmuch as, another Government

employee namely, N N Hira, against whom also the allegations were equally grave has been dropped, and two, that sanction to prosecute the

petitioners has not been given by a competent authority, inasmuch as, these respondents being removable from office by the Chief Engineer, Public

Health Engineering Department, jammu, the Government bad no power to accord sanction for their prosecution in terms of Cl. (b) of Section 6 of

the Act.

3 The first ground of violation of Article 14, it may be stated, is utterly misconceived and is, therefore, rejected. What dissuaded the authority from

granting sanction to the prosecution of N. N. Hira is not clear from the record. Whether or not he deserved to be prosecuted depended upon the

nature of the evidence collected against him during the investigation. In case the evidence against him was of a weaker type, he could not be said to

be similarly situated with the others, namely, the petitioners, to attract the provisions of Article 14.

This brings me to the second ground, rather the only ground, which has been urged by the learned counsel for the petitioners with some

seriousness that the sanction to prosecute the second and third petitioner is invalid. Section 6 of the Act reads as under :

Previous sanction necessary for prosecution

(1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Ranbir Penal Code, or under subsection (2)

of section 5 of this Act, aledged to have been committed by a public servant, except with the previous sanction.

(a) in the case of a person who is not removable from his office save by or with the sanction of the Government, of the Government,

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

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under subsection (1) should be given by the

Government or any other authority, such sanction shall be given by the 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.

This section, as its plain language warrants, places Government servants in two categories for the purpose of sanctioning their prosecution for

the offences mentioned therein, namely, those who can be removed from service by the Government, and those who can be removed from service

by other authorities. Clause (a) deals with Government servants belonging to the first category, whereas Clause (b) deals with those belonging to

the second category. No difficulty can arise in so far as Government servants falling in Clause (a) are concerned, for there can be no two opinions

that they can be removed from service by the Government alone, irrespective of the fact, by whom they were appointed. Some difficulty may

however, arise in so far as Government servants falling in Cl. (b) are concerned The petitioners, Kidar Singh and Swami Raj, being allegedly

removable from office by an authority other than the Government, a question would naturally arise, as to who would be that authority. Answer to

this question is not to be found in the Act for the Act does not say as to who shall be removable from office by whom Answer to this question has,

however, to be found in Section 126 of the Constitution of Jammu & Kashmir, which ordains that no person who is a member of a Civil service of

the State, or holds a civil post under the State shall be dismissed or removed by an authority suborbinate to that by which he was appointed.

Decisions under Article 311 of the Constitution of India, which corresponds to Section 126 of the State Constitution, are legion on the point that

an authority equal, or higher in rank to the authority which had appointed the Government is competent to remove him from service. This rule is

based upon a sensible view that a subordinate should not be permitted to nullify the order of his superior. (Karamdeo Singh Vs State of Bihar and

another, AIR 1956 Patna 228, and Monmatba Nath Ghosh Vs. Director of Public Instruction. AIR 1958 Cal. 49).

Again, rank has reference to the date of appointment of the Government servant. Even a subsequent legislative provision pr rule empowering

delegation of power of dismissal or removal to a subordinate will cease to have effect, as the same would be ultra vires of the constitutional

guarantee provided to a Government (Servant under section 126(1). Consequently, where a Government servant has been appointed by a higher

authority but such power is later on delegated to a lower authority, he cannot still be removed from office by the lower authority. In a recent case

Viz Krishna Kumar Vs The Divisional Assistant Electrical Engineer, AIR 1979 SC 1912, their Lordships interpreted Article 311(1) in these words

:

....... Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of

appointment. It is at that point of time that the constitutional guarantee under Article 311(1) becomes available to the person holding, for example a

civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him The

subsequent authorisation made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon

respondent 1 the power to remove him ......

The Government has appellate powers in relation to orders passed by Heads of Departments and also revisional powers in relation to orders

passed by other officers under the provisions of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 in matters of disciplinary

action against its employees it can dismiss or remove from service an employee who has been exonerated by an officer or an authority subordinate

to it and vice versa. Section 125 of the State Constitution which corresponds to Article 310 of the Indian Constitution no doubt provides that

every person who is a member of a civil service of the State, or holds any civil post under the State holds office during the pleasure of the

Governor, but this section itself is subject to the provisions of Section 126, as would be borne out from its opening words ""except as expressly

provided by this Constitution"". That Article 3ll is an exceptions Article 310, has been time and again held by various courts in the country In State

of Uttar Pradesh and ors. Vs Babu Ram Upadhya, AIR 1961 SC 751, for instance, their Lordships observed :

The discussion yields the following results : (1) In India every person who is a member of a public service described in Art. 310 of the

Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. (2)

The power to dismiss a public servant at pleasure is outside the scope of Art. 154 and, therefore, cannot be delegated by the Governor to a

subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution. (3) This tenure is subject to the limitations or

qualifications mentioned in Art. 311 of the Constitution. (4) The Parliament or the Legislatures of States cannot make a law abrogating or

modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Act. 310, as qualified by

Art. 311. (5) The Parliament or the Legislatures of State can make a law regulating the conditions of service of such a member which includes

proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Art. 310 of the Constitution rerd

with Art. 311 thereof (6) The Parliament and the Legislature also can make a law laying down and regulating the scope and content of the doctrine

of ""reasonable opportunity"" embodied in Art. 311 of the Constitution; but the said law would be subject to judicial review. (7) If a statute could be

made by Legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred there under would

likewise be efficacious within the said limits

Assuming, or even granting, that he being their appointing authority, the respondents were removable from office by the Chief Engineer, yet the

Government being an authority higher than the Chief Engineer and Section 125 being subject to the provisions of Section 126 of the State

Constitution, it had ample power to remove them from office and consequently accord sanction to their prosecution also in terms of Clause (b) of

Section 6 of the Act.

The question whether or not a sanction accorded by an authority higher in rank than the appointing authority in terms of Section 6 of the

Prevention of Corruption Act, (Central Act of 1947), which is in parimateria with section 6 of the Act, directly arose in a member of cases wherein

it was held that such a sanction was legally valid. In Mahesh Prasad Vs. State of Uttar Pradesh, AIR 1955 S. C. 70, for instance, their Lordships

expressed their opinion in these words :

Learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code, contemplates that the

authority competent to remove must be either the very authority who appointed or any other authority directly superior to the appointing authority

in the same department. We do not think that this contention is tenable. What the Constitution requires is that a person should not be removed by

an authority subordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same, viz. ""the

authority competent to remove should not be lower than the one who made the appointment"".

These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct

superior. It appears to us to be enough that the removing authority is of the same tank or grade .......

Similarly in State Vs. Yash Pal, AIR 1957 Punjab 91, it was held :

In the present case it is admitted by the opposite party that he was appointed by an Assistant Inspector General of Police who ranks with the

Superintendent of Police, and in the present case the sanction was given by the Deputy Inspector General of Police Mr. Shamsher Singh. Under

Sec. 6(1) (c)and the present case falls under this section previous sanction has to be obtained from the authority competent to remove a public

servant from his office. The appointment in the present case was by a person of the rank of a Superintendent of Police and the sanction given is by

a person who ranks higher than the Superintendent of Police, i.e. the Deputy Inspector General of Police.

In my opinion, the sanction given does not contravene the provisions of section 6(1) (c) and I am of the view that the learned Judge took an

erroneous view of the matter and no objection can be taken on the ground of sanction.

To the same effect are the following observations made in Makhan Lal Vs State, AIR 1959 Raj. 214;

I do not agree with the argument of Mr. Gupta, It is for the prosecution to show that valid sanction had been given, and it was, therefore, the duty

of the prosecution to prove that the appellate was appointed under the Government of India by Regional Traffic Superintendent or an officer of

equal rank or lower rank......

The law is thus well settled that compete/icy of the authority to grant sanction in terms of Cl. (b) of Section 6 of the Act has to be determined

with reference to Subsection (1) of Section 126 of the State Constitution, Consequently, the authority granting the sanction should either be equal

to or higher in rank than the appointing authority, but in no case lower than it; rank having reference to the date of the appointment of the

Government servant sought to be prosecuted under the Act.

The Government being higher authority, sanction granted by it to prosecute the respondents cannot be said to be invalid

In the result, the revision petition Tails, which is dismissed accordingly.