HABIBULLA KALYANI v. STATE — 1985 DIGILAW 8 (GUJ)

J. P. DESAI, J. ( 1 ) "the petitioners in these two petitions are accused in Special Case No. 19 of 1984 of the Court of Special Judge Ahmedabad. Petitioner Habibulla Kalyani was serving as Class I Officer in the Sales Tax Department while petitioner Haribhai Patel was serving as Sales Tax Inspector. * * * * * * are reproduced below: * * * * vious sanction". x x x x x x (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; (b) in the case of any other person of the authority competent to remove him from his office. Petitioner Habibulla being a Class I Gazetted Officer is not removable from his office save by or with the sanction of the State Government while petitioner Haribhai being a non-gazetted officer could be removed by a competent authority other than the Government. A proper sanction under sec. 6 (1 ) (b) would be required to be issued by the State Government so far as petitioner Habibulla is concerned while sanction of the Sales Tax Commissioner would be a valid one so far as petitioner Haribhai is concerned because he can be removed from service by the Sales Tax Commissioner. It however appears. for the reasons with which we are not concerned that the sanction has been accorded in respect of both the petitioners by the State Government to prosecute them for the alleged offence. The sanction is signed by Mr. Chandramauli Additional Chief Secretary Finance Department on behalf of the Governor of Gujarat. The sanction shows signature of Mr. Chandramauli below the endorsement:"by order and in the name of the Governor of Gujarat " in the two sanctions accorded to prosecute these two petitioners. (When the charge-sheet was submitted to the Court of Special Judge against these two petitioners two different applications were submitted before the learned Special Judge. In the application Exh. 4 submitted on behalf of the petitioner Habibulla original accused No. 1 it was submitted that the matter may be adjourned because the accused wanted to challenge the validity of the sanction. In the application Exh. In the application Exh. 4 submitted on behalf of the petitioner Habibulla original accused No. 1 it was submitted that the matter may be adjourned because the accused wanted to challenge the validity of the sanction. In the application Exh. 5 submitted on behalf of the petitioner Haribhai original accused No. 2 it was submitted that the sanction accorded to prosecute this accused Haribhai was not a legal and valid sanction and hence the petitioner may be discharged. It was submitted in the application that the sanction is given as contemplated under sec. 6 (1) (h) of the Prevention of Corruption Act and that even the Commissioner of Sales Tax is competent to accord sanction because he can remove the petitioner Haribhai from service. It was contended that only the Commissioner of Sales Tax and not the State Government was competent to accord sanction so far as petitioner Haribhai is concerned. It was also con tended in the said application that the Sales Tax Commissioner. who was competent to accord sanction for prosecuting this accused Haribhai was not willing to accord sanction and therefore. it appears that sanction was accorded by the Additional Chief Secretary. The learned Special Judge by a common order dated 12/10/1984 disposed of these two applications holding * * * * * * * * * * * and 563 of 1984 were filed before this Court by the two accused challenging the order of the learned Special Judge. The said revision applications were disposed of by Brother M. B. Shah J. on 27/11/1984 by a common order. It was contended before this Court in those revision applications that the petitioners were not challenging the sanction granted by the State Government on the ground that the State Government is not competent to grant the said sanction but what they were contending was that before granting the sanction the State Government had not applied its mind. The learned Judge while disposing of these two revision petitions. observed that whether the State Government has granted the sanction after applying its mind or not would be a pure question of fact. The learned Judge while disposing of these two revision petitions. observed that whether the State Government has granted the sanction after applying its mind or not would be a pure question of fact. The learned single Judge observed that the learned Special Judge had observed in his order to the same effect and had held that as the said point was a mixed question of law and facts it could be considered only after the case was fixed for trial and evidence of the relevant prosecution witnesses on that point is recorded. The learned single Judge of this Court directed the learned Special Judge to record the evidence only with regard to sanction and to direct the prosecution to examine those witnesses who are relevant on the said point. The learned single Judge observed that after taking into consideration the evidence led by the prosecution on his point. it would be open to the accused to file an application contending that the point of sanction may be decided at that state and the learned Special Judge was directed to decide the said application on merits without insisting that the point would be decided at the end of the trial. Thereafter the prosecution examined Mr. Chandramauli as a witness at Exh. 28 Mr. Chandramauli produced the file containing the papers which were sent to the Finance Minister for according sanction on behalf of the State. After the evidence of Mr. Chandramauli was recorded. an application was submitted to Exh. 36 on behalf of the accused Habibulla that the sanction was in fact accorded by the Finance Minister and not by Mr. Chandramauli who has simply signed the sanction and that the evidence of Mr. Chandramauli did not disclose that the Finance Minister had applied his mind to the facts of the ease before according sanction. It was contended on behalf of the accused that as the Finance Minister was not examined as a witness to establish that he had applied his mind to the facts of the case before according sanction the prosecution had failed to establish proper application of mind before the grant of sanction and therefore the sanction was not a valid one. The Additional Public Prosecutor filed a written reply at Exh. 40 contending that there was sufficient material to show that the Finance Minister had applied his mind before according sanction. The Additional Public Prosecutor filed a written reply at Exh. 40 contending that there was sufficient material to show that the Finance Minister had applied his mind before according sanction. Similar application was also submitted on behalf of * * * * * * * * * * of by this common order. ( 2 ) IT is not disputed that so far as petitioner Habibulla is concerned he can be removed from service only by or with the sanction of the State Government. In vies of this. it cannot be disputed that sanction of the State Government is necessary to prosecute him for an offence punishable under the Prevention of Corruption Act as required by section 6 (1) (b) of the said Act. Article 166 of the Constitution which deals with the conduct of business of the Government of a State is reproduced below for the sake of ready reference: 166 Conduct of business of the Government of a State:- (1) All executive action of the Government or a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. In exercise of the powers which are conferred on the Governor of Gujarat the Governor of Gujarat has framed rules what are styled as The Gujarat Government Rules or Business 1984. Rule 13 of the said rules is relevant for our purpose and it is reproduced below:"13 Every order or instrument of the Government of the State shall be signed either by a Secretary. an Additional Secretary. a Special Secretary. a Joint Secretary a Deputy Secretary. Rule 13 of the said rules is relevant for our purpose and it is reproduced below:"13 Every order or instrument of the Government of the State shall be signed either by a Secretary. an Additional Secretary. a Special Secretary. a Joint Secretary a Deputy Secretary. an Under Secretary an Assistant Secretary for a Section Officer or by such other officer as may be specially empowered in that behalf by the Government and such signature shall be deemed to be the proper authentication or such order or instrument". Rule 15 of the said rules provides that the Governor may issue instructions on the advice of the Chief Minister so as to supplement the rules to such extent as may be necessary It appears that instructions have accordingly been issued in the Governor of Gujarat and they are contained in a booklet Instructions regarding the Business of the Government issued under rule 15 of the Gujarat Government Rules of Business 1980 Instruction 4 (1) (a) of the said instructions which is relevant for our purpose is reproduced below:"4 (1) (a) Except as otherwise provided in these Instructions cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department". x x x Instruction 7 which may also he to some extent relevant is reproduced * * * * * * * * framed This provision is obviously made with a view to see that every matter is not required to be brought before the Council of Ministers. Rule 4 of the rules which are framed by the Government in this regard says that the business of the Government shall be transacted in the departments specified in the First Schedule and shall be classified and distributed amongst those departments as laid down therein This shows that instead of the whole Council of Ministers taking a decision on a particular matter on behalf of the Government Ministers in charge of respective departments are authorised to deal with the respective subjects mentioned therein Instruction 4 (1) of the Instructions regarding the Business of the Government issued under rule 15 clearly shows that the Minister-in-charge of the particular department has ordinarily to dispose of the matters. So far as the Finance Department with which we are concerned the Finance Minister in pursuance of instruction 4 (1) (a) issued directions authorising the Principal Secretary (Revenue Division) Finance Department to deal with certain matters and item No. 4 (vii) of Schedule not the said instructions dated 29/12/1981 reads as follows:x x x x x (vii) "all cases involving major punishment and cases involving disciplinary action against gazetted officers including Section Officers in Finance Department and gazetted officers in Sales Tax Department/insurance Department/accounts and Treasuries Department". Item No. (x) of Instruction No. 2 contained in Schedule IV of the said Instructions issued by the Finance Minister reads as follows:2 x x x x x x x x " (x) Appointment of persons in Gazetted posts and their posting in Accounts and Treasuries Department/insurance Department/sales Tax Department/entertainment Tax Department and Lottery Department. Item No. (xii) of Instruction No. 2 contained in the abovesaid Schedule reads (xii) Disciplinary action against Gazetted Officers of Accounts and Treasuries Department/sales Tax Department/insurance Department/entertainment Tax Department and Lottery Department. Instruction No. 17 (x) contained in the said schedule reads as follows:"17 x x x x x (x) to impost on the staff upto and inclusive of Assistants the punishments of (a) Censure; (b) Withholding of increment. stoppages at the Efficiency Bar; (d) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders subject to a limit of the months emoluments or Rs. 200. 00 whichever is less; and (e) (f) (d) Suspension for period not exceeding 30 days; * * * * * * * rules framed by the Government says that: "secretary includes Chief Secretary Principal Secretary or Additional Chief Secretary. "this shows that the Principal Secretary is above the Additional Chief Secretary and Chief Secretary is above the Principal Secretary Mr. Chandramauli was not Principal Secretary. "this shows that the Principal Secretary is above the Additional Chief Secretary and Chief Secretary is above the Principal Secretary Mr. Chandramauli was not Principal Secretary. but Additional Chief Secretary at the relevant time and therefore but for the office order dated 19/04/1984 delegating the powers to Additional Chief Secretary Finance Department he could not have exercised any powers mentioned in Schedule I of the office order dated 29th December 1981 But any wany way looking to the instructions contained in the office order dated 29/12/1981 read with the office order dated 19/04/1984 we can say that the Additional Chief Secretary Finance Department was having the powers of dealing with all cases involving major punishment and cases involving disciplinary action against gazetted officers in Finance Department and gazetted officers in Sales Tax Department. The Additional Chief Secretary was thus empowered to take disciplinary action and inflict even major punishment to the petitioner Habibulla who was a Class I gazetted officer in the Sales Tax Department. In view of this prima facie one may be inclined to say that the Additional Chief Secretary was even empowered to accord sanction for prosecution of the petitioner Habibulla under sec. 6 of the Prevention of Corruption Act but on careful scrutiny of the provisions of section 6 of the said Act. it does not appear to do so. It is pertinent to note that clause (c) of sub-sec. (1) of sec. 6 of the prevention of Corruption Act says that in the case of a person other than those covered by clause (a) and (b) of sub-sec. (1) of sec. 6 of the Act the authority competent to remove him from office is competent to award sanction. The phraseology used in clause (b) is however quite different. It specifically says that only the State Government can accord sanction if a person is not removable from his office save by or with the sanction of the State Government. If the Legislature intended to provide that even in case of a person covered by clause (b) of sub- sec. (1) of sec. It specifically says that only the State Government can accord sanction if a person is not removable from his office save by or with the sanction of the State Government. If the Legislature intended to provide that even in case of a person covered by clause (b) of sub- sec. (1) of sec. 6 if some officer or authority other than the State Government was competent to remove him from service the said officer or authority was competent to accord sanction to prosecute the said person then the Legislature would have used the phraseology similar to that used in clause (c) It appears from the phraseology used in clauses (a) and (b) of sub-sec. (1) of section 6 as compared to the phraseology used in clause (c) that the Legislature intended to lay down that so far as the public servants covered by clauses (a) and (b) are concerned only the appropriate Government the Union Government or the State Government as the case may be and none else was competent to accord sanction even if some officer or other authority was authorised to remove that public servant from his office. I may also mention here that on going through the rules the instructions regarding the business of the Government issued under Rule 15 of the Rules and the office order passed by the Finance Minister on 29/12/1981 read with the office order passed on 19/04/1984 and the channel of submission of cases and decision taking levels with regard to establishment matters in respect of gazetted officers contained in the Government of Gujarat General Administration Department Circular No. SFS-1180/cd dated 1/07/1980 we find no provision authorising any officer not even Chief Secretary to accord sanction under section 6 of the Prevention of Corruption Act. It appears that the powers of the State Government are to be exercised by the Council of Ministers and the powers could be exercised by the concerned Minister by virtue of being placed in charge of that Department as per the provisions of the Gujarat Government Rules of Business 1984 with regard to the matters pertaining to his department as listed in the First Schedule of the Rules. This is a sort of delegation of authority of the Council of Ministers to the concerned Minister. It appears that because the powers of according sanction under sec. This is a sort of delegation of authority of the Council of Ministers to the concerned Minister. It appears that because the powers of according sanction under sec. 6 of the Prevention of Corruption Act are to be exercised by the State Government we do not find any place anywhere authorising even the Chief Secretary to accord sanction. It is not necessary to consider in these revision petitions whether the Minister could have delegated the power of according sanction to any other officer because the Circulars of Instructions which are placed in my hand on behalf of the State do not contain any such digestion. It may also be mentioned here that in fact the Instructions regarding channel of submission of cases and decision taking levels contained in the Government Circular dated 1/07/1980 which I have referred to earlier show that it case of Class I Officers the decision taking level is the Minister and submission is to be made by the Secretary GAD to the Chief Secretary and then to the Minister. So far as dismissal removal or disclipinary action resulting in reduction in rank of such officer is concerned the Minister has to take the decision in the matter even as per these instructions. But even apart from this it is clear that there is no provision made in any of these rules or instructions empowering any other officer by the concerned Minister to accord sanction under sec. 6 (1) (h) of the Prevention of Corruption Act. The learned Special Judge has observed at paragraph 13 of his order dated 27th February 1985 that the Additional Chief Secretary Finance and not the Finance Minister was the sanctioning authority for according sanction for the prosecution of the two accused. The learned Special Judge observed therein that it means that the file was put up before the Finance Minister only for the purpose of obtaining his approval of the recommendation made by Mr. Chandramauli. The learned Special Judge has curiously enough observed that it appeared that it was merely an office routine but that does not necessarily mean that the Finance Minister was the sanctioning authority. The learned Special Judge has taken this view in spite be the clear statement made by Mr. Chandramauli Exh. Chandramauli. The learned Special Judge has curiously enough observed that it appeared that it was merely an office routine but that does not necessarily mean that the Finance Minister was the sanctioning authority. The learned Special Judge has taken this view in spite be the clear statement made by Mr. Chandramauli Exh. 28 in cross-examination at paragraph 10 that the reason for putting up the file to the Finance Minister was that unless he (Finance Minister) approves his (Mr. Chandramauli) recommendations the sanction for the prosecution of the accused cannot be accorded. It is surprising that inspite of this clear statement made by Mr. Chandramauli. the learned Special Judge observed that the sanctioning authority was Mr. Chandramauli and that the file was submitted to the Finance Minister merely as an office routine. Mr. Chandramauli has nowhere stated that he was competent to accord sanction. hut for certain reasons he had thought it proper to obtain approval of the Finance Minister and therefore he had submitted the file to the Finance Minister. Prima facie one may be inclined to say looking to the instructions issued from time to time that the Additional Chief Secretary being competent to remove even petitioner Habibulla a Class I Officer from service. he has competent to accord sanction and that is what Mr. Chandramauli wanted to convey when he deposed that the matter was submitted to the Finance Minister for approval But if we read the specific statement of Mr. Chandramauli that the sanction could not have been accorded unless it was approved by the Finance Minister in the light of sec. 6 (1) (b) of the Prevention of Corruption Act it is crystal clear that Mr. Chandramauli submitted the file to the Finance Minister because lot as a matter of routine but because the approval could he accorded by the State Government only and only the Finance Minister could act on behalf of the State Government for according sanction. Neither the rules nor the instructions issued by the State Government nor the instructions by the Finance Minister from time to time which are referred to earlier indicate anywhere that certain decisions have to be taken by the concerned Secretary hut approval is required to be obtained from the concerned Minister. The instructions therefore did not require Mr. Chandramauli to obtain approval of the Finance Minister and even then Mr. The instructions therefore did not require Mr. Chandramauli to obtain approval of the Finance Minister and even then Mr. Chandramauli has specifically stated that sanction could not have been accorded unless the recommendations made by him were approved by the Finance Minister. When we read this statement of Mr. Chandramauli in the light of the provision in sec. 6 (1) (h) of the Act it is clear that Mr. Chandramauli submitted the Me to the Finance Minister because sanction of the State Government and none else was required to prosecute the petitioner Habibulla a Class I Officer. 3 So far as application of mind by Mr. Chandramauli is concerned it call be prima facie said looking to two sanctions Exhibits 32 and 33. on the record of the trial court and looking to the evidence of Mr. Chandramauli that he had applied his mind to all the facts and then taken a decision to recommend prosecution of these two petitioners and accordingly put up the file before the Finance Minister. But here the sanctioning authority was the Finance Minister and not the Additional Chief Secretary as stated above. The question therefore is whether there is sufficient material on record to show that the Finance Minister applied his mind and after proper application of mind he accorded sanction to prosecute the two petitioners. The evidence of Mr. Chandramauli read with the file produced by him shows that after Mr. Chandramauli took a decision to recommend prosecution of these two petitioners the file was submitted to the Finance Minister. I may mention here at this stage that the evidence of Mr. Chandramauli and the papers contained in the file show that the Secretary Finance Department had recommended that the matter may be discussed with the Commissioner of Sales Tax but Mr. Chandramauli did not think it fit or proper to discuss the matter with the Commissioner of Sales Tax and he himself took decision on perusing the relevant papers. The file shows that the Finance Minister on 14/05/1984 made an endorsement in his own hand as deposed to by Mr. Chandramauli as follows: cst to discuss sm 16 /5 it further appears from the endorsement which is reproduced below that the Finance Minister discussed the matter with the CST on 16/5 and made the endorsement which is reproduced below: "discussed with CST. We proceed as suggested by ACS FD/16/5". Chandramauli as follows: cst to discuss sm 16 /5 it further appears from the endorsement which is reproduced below that the Finance Minister discussed the matter with the CST on 16/5 and made the endorsement which is reproduced below: "discussed with CST. We proceed as suggested by ACS FD/16/5". This is all the material placed before the Court to show that the Finance Minister applied his mind and accorded sanction. Mr. Chandramauli dons not appear to have discussed the matter with the Finance Minister because there is nothing in his evidence to that effect. The Commissioner of Sales Tax is also not examined to show as to what discussion he had with the Finance Minister. The Finance Minister is also not examined as a witness to show that he had gone through the relevant papers. applied his mind and then taken a decision to agree with the Additional Chief Secretary Finance Department. The endorsements do not even indicate that the Finance Minister had gone through the papers submitted to him. The endorsements do not even indicate that he had gone through the whole of the nothings in the file. The endorsement made by him only shows that the matter may be proceeded with as suggested by the Additional Chief Secretary Finance Department. The endorsement read as such does not indicate application of mind by the Finance Minister. If there was either an endorsement by the Finance Minister some evidence to show that the Finance Minister had perused the papers and applied his mind and then decided to accord sanction then it may be possible to say that a valid sanction is accorded by the competent authority after applying the mind to the facts of the case. The above endorsements lead us nowhere. Hence in absence of any other evidence it is difficult to say that the Finance Minister accorded santion after applying his mind. ( 3 ) NOW so far as petitioner Habibulla is concerned only the State Government could have accorded sanction and when it appears that there is no material to show that the Finance Minister on behalf of the State accorded sanction after applying his mind the sanction cannot be said to be legal and valid as required under sec. ( 3 ) NOW so far as petitioner Habibulla is concerned only the State Government could have accorded sanction and when it appears that there is no material to show that the Finance Minister on behalf of the State accorded sanction after applying his mind the sanction cannot be said to be legal and valid as required under sec. 6 (1) (b) of the said Act and; therefore the Court of Special Judge could not have taken cognizance of the alleged offence so far as this petitioner is concerned. So far as the other petitioner Haribhai is concerned even the Commissioner of Sales Tax could have accorded sanction to prosecute him in view of sec. 6 (1) (c) of the Act. The Additional Chief Secretary Finance Department. being a superior Officer could also have accorded sanction to prosecute this Haribhai. However even in the case of Haribhai the sanction is accorded by the Additional Chief Secretary not in his capacity as Additional Chief Secretary but has signed the sanction on behalf of the Governor of Gujarat in pursuance of the sanction purported to have been accorded by the Finance Minister. The sanction as against this petitioner also must be struck down because it purports to have been accorded by the Finance Minister without applying his mind. The Court of Special Judge could not have taken cognizance so far as this petitioner Haribhai is concerned. ( 4 ) IT appears from the averments made in Criminal Revision Application No. 114 of 1985 at ground (D) that only 6 to 7 days before 7/12/1983 on which date accused No. 2 Haribhai C. Patel is alleged to have accepted illegal gratification at the instance of accused No. 1 Habibulla Kalyani from Mohanlal Ratanshi a Special Civil Application was filed in this High Court by the said Mohanlal making serious allegations against the Sales Tax Officers including the petitioner Habibulla. There is nothing /on record to show that this important aspect was placed before the sanctioning authority namely the Finance Minister. The evidence of Mr. Chandramauli Exh. 28 shows that he did not know about filing of any such Special Civil Application in the High Court against the petitioner Habibulla and other Sales Tax Officers. It is possible that the Commissioner of Sales Tax with whom the Finance Minister had discussed the matter might be knowing about the filing of the Spl. Chandramauli Exh. 28 shows that he did not know about filing of any such Special Civil Application in the High Court against the petitioner Habibulla and other Sales Tax Officers. It is possible that the Commissioner of Sales Tax with whom the Finance Minister had discussed the matter might be knowing about the filing of the Spl. C. A. but there is nothing on record to show that the said fact was brought to the notice of the Finance Minister. As I am inclined to hold that the sanction is vitiated because of the non-application of mind by the Finance Minister as discussed above it is not necessary to express any opinion whether omission to bring this important aspect to the notice of the Finance Minister and the Additional Chief Secretary would vitiate the sanction but it is needless to say that such an important aspect must be placed before the sanctioning authority so that the authority can consider that circumstance along with other material which may be placed before the said authority. ( 5 ) THE result of the aforesaid discussion is that the charge framed against these two petitioners by the learned Special Judge is required to be quashed and the charge-sheet submitted against these two petitioners to the Court of Special Judge is also required to be quashed. It is true that the charge is already framed against the two petitioners but when it is found that there is no legal and valid sanction to prosecute these two petitioners the petitioners cannot be acquitted for want of legal and valid sanction. They have to he discharged after quashing the charge framed against them. It is needless to observe here that the petitioners are being discharged for want of legal and valid sanction and therefore it will be open to the prosecution to obtain valid sanction from the concerned competent authority to prosecute the petitioners and then submit charge sheet to the concerned court. ( 6 ) THE petitions are therefore allowed. The charge framed by the learned Special Judge against the two petitioners in Special Case No. 19 of 1984 at Exh. 22 on 21/12/1984 is hereby quashed and all the proceedings of Special Case No. 19 of 1984 are hereby quashed and the petitioners are ordered to be discharged. Their bail bonds are also directed to be cancelled. Rule made absolute accordingly in both the petitions. 22 on 21/12/1984 is hereby quashed and all the proceedings of Special Case No. 19 of 1984 are hereby quashed and the petitioners are ordered to be discharged. Their bail bonds are also directed to be cancelled. Rule made absolute accordingly in both the petitions. Petition allowed. .