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1992 DIGILAW 269 (GUJ)

GOPALBHAI MOHANBHAI NAGODA v. STATE

1992-08-27

B.C.PATEL, K.R.VYAS

body1992
VYAS, J. ( 1 ) [his Lordships after stating the facts of the case, further observed :] ( 2 ) HOWEVER, Mr. Budhbhatti, learned Counsel for the appellant submitted before us that the prosecution initiated against the appellant is without valid sanction and therefore, the entire trial held against the appellant is illegal and bad for want of proper sanction. Now, in the instant case, the Deputy District development Officer, District Panchayat, Amreli had granted sanction vide order dated 22-5-1984. Mr. L. A. Thakar, PW-2, Exhibit 14 who has been examined in the case had stated that the Director of Anti-Corruption Bureau had sought sanction vide his letter dated 30/04/1984 to prosecute the appellant. Alongwith the said letter, the case papers were also placed. After examining the same, the sanction had been granted vide Exhibit 17. Mr. Thakar in his crossexamination, has stated that the appellant was appointed by the District development Officer and the sanction to prosecute has been given by the Deputy district Development Officer. In this view of the matter, learned Counsel has raised similar contentions as were raised before the trial Court by referring to judgment given by this Court in Bachubha Ramsinhji v. Shivlal, I. P. S. , Kutch and Ors. , AIR 1970 Gujarat 180: ( 1970 GLR 827 ). In the said judgment, the facts were quite different from the facts of this case. In the said judgment, it was observed that fresh appointment for every promotion is required and therefore, when a Police Constable is appointed by the District superintendent of Police and if he is promoted by the Deputy Inspector General of Police, then sanction should not be given by D. S. P. as it is not in consonance with Art. 311 of the Constitution of India. In the instant case mr. D. N. Patel, learned Counsel for the State has contended that the appellant was appointed by the District Development Officer in the year 1965. The deputy District Development Officer was competent to remove him as a competent officer under Gujarat Panchayat Service (Appointing Authority) Rules, 1967. According to Mr. Patel these Rules were in force when the sanction was granted. Under the said Rules, the District Development Officer has been vested with the powers to appoint Gram Panchayat Secretaries over and above other categories with which we are not concerned. The appellant is Gram panchayat Secretary. According to Mr. Patel these Rules were in force when the sanction was granted. Under the said Rules, the District Development Officer has been vested with the powers to appoint Gram Panchayat Secretaries over and above other categories with which we are not concerned. The appellant is Gram panchayat Secretary. In view of this it was contended that since the Deputy district Development Officer is Competent Authority to appoint Gram Panchayat secretaries under the Rules of 1967 he is also Competent Authority to remove him in view of the provisions of Gujarat Panchayat Services (Discipline and appeal) Rules, 1964. The said Rules of 1964 - schedule thereof - gives power to the Deputy District Development Officer to impose any penalty on the Secretary of the Gram Panchayat. Thus, according to submission of mr. Patel, the Deputy District Development Officer who was possessing power of removal in the year 1964 and by virtue of new Rules of 1967 coming into force on the day on which the offence took place, the Deputy District develoment Officer was Competent Authority for appointment and removal of Gram Pauchayat Secretaries, it must be held that the sanction in the present case is valid and proper. At this stage before dealing with the rival contentions, it is necessary to refer to the provisions of Section 6 (l) (c) of Prevention of Corruption Act, 1947 :"6. Previous sanction necessary for prosecution (i) No Court shall take cognizance of an offence punishable under Sec. 161 or Sec. 164 or Sec. 165 of the Indian penal Code (45 of 1860) or under (sub-sec. (2) or (sub-sec (3)) of Sec. 5 of this act, alleged to have been committed by a public servant except with the previous sanction - (a) xxx xxx xxx (b) xxx xxx xxx (c) in the case of any other person, of the authority competiint to remove him from his office "mr. Patel also submitted that in view of the aforesaid provisions of Sec. 6 (l) (c) and the Rules referred to above, the authority competent to remove the appellant is Deputy District Development Officer and therefore, the sanction issued by the Deputy District Development Officer is valid. Patel also submitted that in view of the aforesaid provisions of Sec. 6 (l) (c) and the Rules referred to above, the authority competent to remove the appellant is Deputy District Development Officer and therefore, the sanction issued by the Deputy District Development Officer is valid. We are afraid as in our opinion the learned Assistant Public Prosecutor had over simplified that matter inasmuch as he has missed the requirements of Art. 311 (1) of the Constitution of India :"311 (1) No person who is a member of a civil service of the Union or an all india service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed "the competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Art. 311 (1) of the Constitution; and one of the requirements is that the authority that orders the dismissal or removal should not be one suboidinate in rank to that by which the civil servant in question was appointed. In the instant case, admittedly, the appellant has, been appointed by District Development officer who is the higher authority to Deputy District Development Officer. Where an authority, higher than Hie one entitled under statutory rules to order an appointment, in fact orders a valid appointment, it is factum of that appointment that controls the scope of the guarantee conferred by Art. 311 (1) of the Constitution and, if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order the dismissal, which, however, is lower in rank than the authority in fact ordered the appointment, such an order would contravene the provisions of Art. 311 (1) of the Constitution. This is the view taken by Madias High Court in the case of N. Somaswularam v. Slate of Madras, AIR 1956 (43) Madras 419. The Bombay High Court has also considered the question with regard to Sec. 6 (l) (c) of Prevention of corruption Act, 1947 and Art. 311 of the Constitution of India in Shridhar mahadeo Dhamorikar v. State of Maharashtra, 1969 (2) LLJ 499. The Bombay High Court has also considered the question with regard to Sec. 6 (l) (c) of Prevention of corruption Act, 1947 and Art. 311 of the Constitution of India in Shridhar mahadeo Dhamorikar v. State of Maharashtra, 1969 (2) LLJ 499. The appointment in that case was of a Class III employee originally appointed by the Commissioner of Labour of the State of Madhya Pradesh. He was prosecuted for corruption under Sec. 161 of Indian Penal Code and Sec. 5 (2) read with Sec. 5 (l) (d) of the Prevention of Corruption Act, with the sanction for prosecution given by the Deputy Commissioner of Labour, Nagpur. It was contended that sanction was not given by the Competent Authority and the entire proceedings were void without jurisdiction. The Bombay High court has held that :"held : It is clear from the provisions of Sec. 6 (I) (c) of the Prevention of Corruption act, 1947, that the only authority which is competent to award sanction for prosecution of a public servant like the appellant is the authority competent to remove him from his office. The question who is the competent authority empowered to remove the accused in each case will have to be decided on the facts of each case, The accused holds a civil post under the State of Maharashtra and he was therefore in the matter of his dismissal or removal entitled to the protection under Art. 311 of the constitution of India. He could be removed or dismissed only by his appointing authority, the Labour Commissioner, Madhya Pradesh, whose equivalent in rank in the present State of Maharashtra is the Commissioner of Labour who alone is empowered to award a sanction for his prosecution. The Deputy Commissioner of Labour, Nagpur, who is subordinate in rank to the Commissioner of Labour, cannot be said to have been equated in rank with him by virtue of the provisions of Sec. 4 (2) of the Bombay Industrial Relations Act. "the Supreme Court in Krishna Kumar v. The Divisional Assistant Electrical engineer, Central Railway and Ors. , AIR 1979 SC 1912 was required to consider the question regarding removal from service by an authority subordinate to that appointing civil servant. "the Supreme Court in Krishna Kumar v. The Divisional Assistant Electrical engineer, Central Railway and Ors. , AIR 1979 SC 1912 was required to consider the question regarding removal from service by an authority subordinate to that appointing civil servant. In that case the appellant was appointed as a train Lighting Inspector under an order issued by Chief Electrical Engineer and was removed from service under an order passed by Assistant Electrical engineer, Central Railway, Nagpur. The Court observed as under :"besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him. Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by respondent No 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellants appointment, it must be held that respondent No. 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Art. 311 (1) of the Constitution. " ( 3 ) IN view of the aforesaid authorities on the subject it is clear that a person cannot be removed from service by the authority who is subordinate in rank. Thus, in view of this, a person can be removed only by an appointing authority or an equivalent authority possessing the same power to that of the appointing authority. However, in case, the authority subordinate in rank can remove or dismiss a person and if he causes or exercises such power, it is in patent violation of the provisions of Art. 311 (1) of the Constitution of India. 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 Art. 311 (1) become available. 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 Art. 311 (1) become available. The subsequent authorisation made in favour of the authority passing the order of removal in regard to making appointments to the post held by the appellant cannot confer upon him the power to remove him. In the instant case also the appointment of the appellant has been made by the District development Officer on 21-7-1965 and it is undis-putedly Deputy District development Officer who is subordinate in rank to the District Development officer, in the instant case could not have granted sanction because appointment was made by the District Development Officer. Even though the Deputy District development Officer was holding the power of appointment (not brought on record), he cannot be termed as appointing authority in view of the facts that the appellant was appointed by District Development Officer who is undisputedly higher in rank to that of Deputy District Development Officer. In this view of the matter, we have to hold that the sanction granted by the Deputy District development Officer in the instant case be termed as invalid sanction. The prosecution initiated against the appellant must fail for want of proper sanction. ( 4 ) THE net result of the aforesaid discussion is that after appreciating the evidence of prosecution witnesses, we are of the view that prosecution has successfully proved the case against the appellant. However, for want of proper sanction we have to hold that prosecution initiated against the appellant is without proper and valid sanction, and therefore, without Jurisdiction. Hence, the proceedings are required to be dropped. In view of this, the appeal is allowed. The judgment and order of conviction passed against the appellant by the trial court is hereby quashed and set aside. (Rest of the Judgment is not material for the Reports.) .