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Judgment
M. Sathyanarayanan, J.—The subject matter of challenge in this writ petition is the order of dismissal dated 21.05.2004, passed by the first
Respondent.
The facts leading to the filing of this writ petition are as follows:
The Petitioner was in the services of Oil and Natural Gas Commission Limited (in short ''ONGC''), a Government of India undertaking as a
Deputy Superintending Engineer (Civil) and he was due for promotion as a Superintending Engineer.
The Petitioner was incharge of construction of MAAB Drill Site at Gollala Konderu Village, Andhra Pradesh State and before drilling
operations commenced, facilities such as bunkhouses, toilets and canteen had to be established to accommodate the drilling crew.
A tender in this regard was awarded to the contractor viz., Mr. Bhagvan Narayana on 27.12.2000. In order to avoid delay in provision of
essential provisions to the crewmen and to prevent delay in commencement of drilling operations, the Petitioner who was incharge of the
construction site, got a part of miscellaneous civil work executed as and when the materials arrived from the earlier site through Mr. V. Jagan
Mohan Rao-another contractor who was already engaged for the purpose of executing shed work.
Since the miscellaneous work executed by Mr. V. Jagan Mohan Rao was a part of contract to be executed by Mr. Bhagvan Narayana, it was
agreed that Mr. Bhagvan Narayana should compensate Mr. Jagan Mohan Rao to that extent, after his first bill is cleared by ONGC and the
amount was also fixed at Rs. 50,000/-.
Since Mr. Bhagvan Narayana did not settle the amount to Mr. Jagan Mohan Rao, the Petitioner was pressurizing for earlier settlement as he had
got execution of work done thorough him. Mr. Jagan Mohan Rao requested part settlement of Rs. 25,000/- from Mr. Bhagvan Narayana as first
instalment and hence the Petitioner requested Mr. Bhagvan Narayana to give a sum of Rs. 25,000/- to him to be handed over to Mr. Jagan Mohan
Rao. However, Mr. Bhagvan Narayana misunderstood that as if the Petitioner is demanding bribe, has lodged a complaint with Inspector of
Police, CBI,Visahkapatnam which lead the trap and a sum of Rs. 25,000/- was handed over by Mr. Bhagvan Narayana to the Petitioner for the
purpose of handing over the same to Mr. Jagan Mohan Rao, a trap was lead and the Petitioner was caught. Therefore, a case in Crime No.
RC6/(A)2001-VSB was registered by CBI, Visakhapatnam, was registered on 20.02.2001 and the Petitioner was charged for the alleged
commission of the offence u/s 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988.
The Additional Executive Director of ONGC placed the Petitioner under suspension as per Rule 33(1)(c) of ONGC Conduct (Discipline and
Appeal) Rules 1994. By a subsequent order dated 10.08.2001, the Headquarters of the Petitioner was shifted from Rajahmundry to Cauvery
Project, Karaikkal.
The CBI after investigation, has laid a charge sheet against the Petitioner which was taken on file in C.C. No. 19/2001 by the Court of Special
Judge for CBI cases, Visakhapatnam and the Petitioner was prosecuted for the commission of the above said offences.
The Court of Special Judge for CBI Cases, Visakhapatnam, vide judgment dated 20.06.2003, has convicted the Petitioner and sentenced him
to undergo Simple Imprisonment for one year and to pay a fine of Rs. 1,000/- with default sentence of Simple Imprisonment for one month for the
commission of the offence u/s 7 of the Prevention of Corruption Act and also imposed similar sentence in respect of commission of the offence u/s
13(1)(d) r/w Section 13(2) of Prevention of Corruption Act and the sentences of imprisonment were ordered to run concurrently.
The first Respondent on becoming aware of the said conviction and sentence, has passed the impugned order dated 21.05.2004 by invoking
Rule 41(a) of the above said Service Rules and dismissed the Petitioner from service and challenge is made to the said order by filing this writ
petition.
In the affidavit filed in support of this writ petition it is contended by the Petitioner that the order of dismissal was passed by the first
Respondent which is neither the disciplinary authority nor the competent authority nor the appointing authority and as such it is illegal. It is further
contended by the Petitioner that as against the conviction and sentence, an appeal in Crl.A. No. 628/2003 was filed before the High Court of
Andhra Pradesh and the same is pending adjudication and in all fairness the first Respondent should have awaited for the verdict in the said appeal.
It is further contended by the Petitioner that the judgment under which he has been convicted and sentenced is per se unsustainable.
On behalf of the Respondents counter affidavit has been filed contending that once the Petitioner was convicted and sentenced by the
competent Court, they are left with no other option except to invoke Rule 41(a) of the ONGC Rules and accordingly imposed punishment of
dismissal from the service against the Petitioner. It is further contended that it is not necessary to give any oral hearing before passing the said order
in terms of the above said rules.
The Petitioner has filed a reply affidavit dated 20.09.2010 wherein it has been stated that the appeal in C.A. No. 628/2003 filed by him against
the conviction and sentence passed by the trial Court has been allowed by the High Court of Andhra Pradesh vide judgment dated 17.12.2009
and he has been honourably acquitted and hence it is obligatory on the part of the Respondents to reinstate him forthwith with continuity of service
benefits and back wages.
Mr. V.T. Gopalan, learned senior Counsel appearing for Mr. K. Vasu Venkat, learned Counsel appearing for the Petitioner would submit that
in view of the subsequent development viz., allowing of the Criminal Appeal No. 628/2003, by the High Court of Andhra Pradesh vide judgment
dated 17.12.2009, the Respondents are duty bound to reinstate the Petitioner forthwith and also to pay back wages and provide him with all
attendant and service benefits. It is further submitted that in any event, the Respondents should not have accorded sanction to prosecute the
Petitioner as no materials were available before them and hence sanction was vitiated. The learned senior Counsel in support of his submissions,
has placed reliance upon the following decisions:
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat,
Union of India (UOI) and Others Vs. Jaipal Singh, .
Banshi Dhar Vs. State of Rajasthan and Another, .
(2007) 14 SCC 766 - Food Corporation of India v. Sudarsandas.
In Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, it was contended on behalf of the appellan/accused therein that the conviction and
sentence recorded by the trial Court and as confirmed by the High Court under Prevention of Corruption Act 1974, is liable to be set aside for the
reason that there was no valid sanction within the meaning of Section 6 of the Prevention of Corruption Act, 1974. In paragraph No. 17, 18 and
19 it has been held as follows:
Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act
which affords protection to government servants against frivolous prosecutions. See Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, 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.
The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant
facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction
must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be
established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning
authority. See also State of Bihar and Another Vs. P.P. Sharma, IAS and Another, .
Since the validity of ''sanction'' depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and
evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation
of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from
any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant
sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it
is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or
compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority ''not to sanction'' was taken
away and it was compelled to act mechanically to sanction the prosecution.
The learned senior Counsel appearing for the Petitioner would submit that the grant of sanction is not an empty formality and but for the
sanction accorded by the competent authority, the Petitioner would not have been prosecuted under Prevention of Corruption Act 1988 and that
the sanction has been accorded by the competent authority without any application of mind which resulted in the prosecution of the Petitioner
which ultimately ended in acquittal by virtue of the judgment of the High Court of Andhra Pradesh. Hence the Petitioner is entitled to be reinstated
forthwith with back wages for the entire period in which he was get out of service and also he shall be provided with all attendant and service
benefits.
As regards reinstatement with back wages, reliance was placed upon the decision reported in Union of India (UOI) and Others Vs. Jaipal
Singh, , wherein it has been held that if prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the
department itself, perhaps different considerations may arise and on the other hand, if as a citizen, the employee or public servant got involved in a
criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be
found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not tobe retained in
service. The learned Counsel appearing for the Petitioner again stressed the point, but for the sanction by the department, he could not have been
prosecuted and as such, he is entitled to get full back wages and other benefits on reinstatement.
In Banshi Dhar Vs. State of Rajasthan and Another, , the payment of back wages on reinstatement pursuant to the order of acquittal came for
consideration and it has been held that no hard and fast rule can be laid down in regard to grant of back wages and each case is to be determined
on its own facts. The learned senior Counsel appearing for the Petitioner would contend that the Petitioner was dismissed from service on
21.5.2004 and the order of acquittal came to be passed on 17.12.2009 acquitting him honourably and hence, there is no stigma attached and as
such he is entitled to be reinstated forthwith with all attendant benefits including back wages.
In (2007) 14 SCC 766 - Food Corporation of India v. Sudarsandas, question of reinstatement after setting aside the conviction and sentence
came up for consideration and the Hon''ble Supreme Court of India taking into consideration the factual situation that the Respondent/accused
therein filed a case after a period of 13 years, has held that the back wages ordered by the High Court is not justifiable and therefore, quashed that
part of the order. It has been further held that if the Respondent has not been reinstated pursuant to the High Court order, he should be reinstated
forthwith and if he has been allowed to join, shall be paid back wages only for the period of pendency of the appeal before the Supreme Court.
The learned senior Counsel appearing for the Petitioner would submit that in the said case, belated claim was made, but in the case on hand,
immediately after the order of acquittal dated 17.12.2009, passed by the High Court of Andhra Pradesh, the Petitioner by filing reply affidavit, has
made a claim of reinstatement with full beak wages and all attendant and service benefits and in terms of the above cited judgment, he should be
given full benefit.
Per contra, Mr. G. Masilamani, learned senior Counsel appearing for the Respondents has submitted that immediately after the order of
acquittal passed by the High Court of Andhra Pradesh, the Petitioner has submitted a representation dated 29.01.2010 to the Respondents
praying for reinstatement with all attendant and service benefits and decision on the said representation has been deferred in view of the pendency
of this writ petition. It is further submitted by the learned senior Counsel appearing for the Respondents that the question of reinstatement and
conferment of all attendant benefits is within the domine of the Respondents and the Petitioner cannot assume that his request may not be
favourably considered by them. It is further submission of the learned senior Counsel appearing for the Respondents that a writ of mandamus
cannot be issued on pre-emptive action and the Respondents being a public sector undertaking will act fairly and hence no positive direction may
be issued to the Respondents by this Court.
The Court has carefully considered the submissions made by the respective learned senior Counsel appearing for the parties and also perused
the materials available on record and also the decisions cited before it.
A perusal of the judgment dated 17.12.2009, made in C.A. No. 628 of 2003, passed by the High Court of Andhra Pradesh would reveal that
the Petitioner was honourably acquitted on the ground that there is no legal evidence to show that he received amount towards illegal gratification
and that the trial Court has committed an error in placing reliance upon the evidence of an hostile witness. It is pertinent to point out at this juncture
the order of acquittal came to be passed on account of absence of legal evidence and not on the ground of validity of sanction.
As the offence alleged against the Petitioner involved moral turpitude and the materials collected by the investigating agency at the relevant
point of time prima facie disclose the commission of the offence, the competent authority of the Respondent has accorded sanction and the same
cannot be faulted with at this distant point of time. As already stated above the order of acquittal came to be passed only on the ground of lack of
legal evidence and not on the ground of improper sanction. Therefore, the submissions made on that ground, lack merit.
The Petitioner immediately after the order of acquittal, has submitted representation dated 29.1.2010 to the Respondents for immediate
reinstatement with all attendant and service benefits and the learned senior Counsel appearing for the Respondents on instructions, would submit
that the decision to be taken on the said representation is deferred in view of the pendency of this writ petition and immediately after the disposal of
this writ petition, it will be considered on merits and in accordance with law in a fair manner.
In the decision reported in Oil and Natural Gas Corporation Ltd. Vs. P. Surya Rao, , the Respondent therein was dismissed from service and
while ordering his reinstatement, certain benefits were denied to him and challenging the legality of the same, a writ petition was filed. The writ
petition was allowed wherein direction was given to grant pay and allowances and challenging the vires of the same, ONGC has filed a writ appeal.
A Division Bench of this Court has allowed the writ appeal and directed the Appellant viz., ONGC to pass orders in terms of Regulation 14 of Pay
and Allowances Regulations 1972 and also keeping in mind the principles laid down in the Apex Court''s decision in Hindustan Tin Works v. Its
Employees reported in 1979 SC 75; 2001 (7) SCC 231, B.R. Kapoor v. State of Tamil Nadu 2001(4) CTC 219 as well as the order of acquittal
passed by the High Court of Andhra Pradesh.
As rightly contended by the learned senior Counsel appearing for the Respondents, this Court cannot say that the Respondents are going to act
in an unfair manner by denying the request made by the Petitioner for reinstatement and conferment of all attendant benefits. This Court has also
taken into consideration the submissions made by the learned senior Counsel appearing for the Respondents on instructions that the Respondents
will consider the representation submitted by the Petitioner in all fairness and pass orders expeditiously. The reinstatement and payment of
attendant service benefits to the Petitioner is within the domine of the Respondents and in the absence of any order rejecting the request made by
the Petitioner, this Court cannot direct the Respondents to reinstate the Petitioner forthwith and confer him with all attendant service benefits by
issuing a positive direction.
In the result, this writ petition is disposed of and the Respondents are directed to consider the representation dated 29.1.2010 submitted by
the Petitioner on merits and in accordance with law and pass orders as expeditiously as possible and not later than six weeks from the date of
receipt of copy of this order. The Respondents while disposing of the said representation, shall take into consideration, the order of acquittal dated
17.12.2009 made in C.A. No. 628 of 2003, passed by the High Court of Andhra Pradesh. In the circumstances, there will be no order as to
costs. Consequently, connected miscellaneous petition is closed.