Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 973 (PAT)

Shri Lakshmi Roy @ Laxmi Roy v. State Of Bihar

2002-09-06

B.N.P.SINGH, R.N.PRASAD

body2002
Judgment R.N.Prasad, J. 1. The case was initially Disted before a single bench of this Court, learned Judge at the admission stage itself referred the matter to the division bench and as such the case was placed before us. 2. The petition has been filed for quashing the order dated 19.10.2001 whereby cognizance was taken against the petitioner by Special Judge, C.B.I., North Bihar, Patna in Special case no. 23/ 97/R.C. No. 43/97 for the offence under sections 120 B, 420, 468, 471, 201 & 204 of Indian Penal Code and Section 13(2)/ 13(1)(d) of the Prevention of Corruption Act, 1988. 3. The relevant facts of the case are that at the relevant time in the year 1996 the petitioner was Principal of Regional Institute of Technology, Jamshedpur. The State Government constituted examination committee consisting of Principal, Regional Institute of Technology, Jamshedpur, Bihar Institute of Technology, Sindri, Bihar College of Engineering, Patna, Bihar College of Engineering, Bhagalpur and Muzaffarpur Institute of Technology, Muzaffarpur for conducting examination of Combined Engineering Entrance Examination, here-in- after referred to as C.E.E.E for brevity. Kameshwar Prasad of Muzaffarpur Institute of Technology was appointed convenor by the State Government. The examination was to be held on 30.6.1986. On the same day Kameshwar Prasad was to retire, thus the State Government appointed R.C. Das Vikal as co-convenor. The examination was held and result was published. Students were admitted on the basis of said result. There was a complaint of manipulation in C.E.E.E. and as such writ petitions were filed before the High Court which were disposed of directing Central Bureau of Investigation, here-in- after referred to as C.B.I., to investigate the matter and as such first information report i.e. R.C. Case No. 43(A)/97 was registered against four persons in which petitioner was not figured as an accused. However, after completion of investigation, charge sheet was submitted and the petitioner was made accused in the charge-sheet. Cognizance was taken on 19.10.2001 as indicated above which has been impugned in this petition on the ground that no case is made out against the petitioner and that sanction was accorded by the Chairman who was not competent to accord sanction in the case of the petitioner. 4. Cognizance was taken on 19.10.2001 as indicated above which has been impugned in this petition on the ground that no case is made out against the petitioner and that sanction was accorded by the Chairman who was not competent to accord sanction in the case of the petitioner. 4. A counter-affidavit has been filed on behalf of C.B.I. wherein stand has been taken that there was sufficient material on the record against the petitioner and sanction has been accorded by the Chairman who was competent to accord sanction in the case of the petitioner. 5. Section 197 of the Code of Criminal Procedure as well as Section 19 of the Prevention of Corruption Act, 1988 both say that no court shall take cognizance except with the previous sanction. It appears that petitioner had raised the question that sanction for prosecution was not granted by the competent authority before the Special Judge, C.B.I. but ignoring the question raised by the petitioner the Special Judge, C.B.I., took cognizance of the offences as stated above. Similar question was raised before the Single bench of the Court. However, it referred the matter to a Division Bench. Learned single bench has considered the decision in the case of P.K. Pradhan vs. State of Sikkim, (2001) 6 S.C.C. 714 and quoted its para 15 which says that there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In such cases in order to come to a conclusion whether the claim of the accused that the act that he did was in course of performance of official duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. 6. In the instant case during course of argument learned counsel for the petitioner and the Opposite party, however, confined their argument only on the competency of the sanctioning authority. The question was raised only that the sanctioning authority i.e. Chairman of the Board of Governors was not competent to sanction the prosecution. For determining such question, in my view, there is no need to go into the merit/factual aspect of the case rather it has to be decided on the basis of relevant rules and provision of law. The question was raised only that the sanctioning authority i.e. Chairman of the Board of Governors was not competent to sanction the prosecution. For determining such question, in my view, there is no need to go into the merit/factual aspect of the case rather it has to be decided on the basis of relevant rules and provision of law. It is well established rule of law that the question of sanction/ competency of the authority who has granted sanction can be raised at any stage after taking cognizance. In the instant case it has already been stated that question was raised before the Special Judge at the time of taking cognizance but the same has been ignored and cognizance has been taken. Therefore, it is necessary to proceed to determine the question raised by the learned counsel for the petitioner on the basis of admitted facts and law. 7. The admitted position is that the petitioner at the relevant time was Principal of R.I.T. Jamshedpur. He was appointed as one of the members of the examination committee by the State Government for conducting C.E.E.E. held on 30.6.1996. He was not figured as an accused in First Information Report. However, in the charge- sheet his name was included as one of the accused alleging that he being a member of the committee was involved in conspiracy to commit bungling in the said examination. The prosecution has been sanctioned by the Chairman of the Board of Governors of R.I.T., Jamshedpur. The question has been raised by the petitioner that the Chairman is not competent authority to sanction prosecution as he was Principal of R.I.T. Jamshedpur and his appointing authority is Board of Governors with the approval of the Central and the State Governments, he can be removed from the office only by the appointing authority and as such the Board with the approval of the Central and the State Governments can sanction the prosecution. At the relevant time he was appointed member of Examination Committee by the State Government and he conducted examination as member of the Examination committee, he can be removed only by the appointing authority, and as such only the State Government is competent to grant sanction for prosecution. Whereas, the claim of the respondents is that Chairman of the Board of Governors is competent to sanction prosecution. 8. Whereas, the claim of the respondents is that Chairman of the Board of Governors is competent to sanction prosecution. 8. R.I.T. Jamshedpur is a registered society, it has own bye-laws and Rules for smooth functioning of the institution, constitution of Board of Governors, power and function of the Board, appointment and control over the staff etc. Rule 19 of R.I.T., Jamshedpur says "in future the Principal shall be appointed by the Board with the approval of the Central and the State Governments." The petitioner has admittedly been appointed as Principal of R.I.T. Jamshedpur by the Board of Governors with the approval of the Central and the State Governments. At the relevant time he was discharging the function as a member of the examination committee appointed by the Bihar Government. 9. Section 197 of the Code of Criminal Procedure deals with previous Sanction for prosecution and it says : (1) "When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction, (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government". 10. 10. Similarly Section 19 of the Prevention of Corruption Act, 1988 deals with the previous sanction for prosecution and it says : "(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." 11. From the provisions as quoted above it is evident that the authority who is competent to remove the employee from the office is competent to grant sanction for the prosecution. The petitioner at the relevant time was Principal of R.I.T., Jamshedpur. He was appointed as Principal of R.I.T. Jamshedpur under Rule 19 of R.I.T., Jamshedpur by the Board of Governors with the approval of the Central and the State Governments as indicated above and at the relevant time he was discharging the duty as member of the examination committee constituted/appointed by the Bihar Government with respect to the affairs of C.E.E.E. and as such the appointing authority i.e. Board of Governors with the approval of the Central and the State Governments is competent to remove the petitioner from service and was competent to sanction prosecution. He was discharging the duty of conducting the examination at the relevant time as member of the examination committee constituted/appointed by the State Government and for any lapses only the State Government would be competent for removal of the petitioner and to grant sanction for prosecution but admittedly sanction has been granted by the Chairman of the Board of Governors who alone was not competent to appoint/ remove the petitioner who was Principal of R.I.T. Jamshedpur. 12. Rule 19 of Service and Conduct Rules, R.I.T. Jamshedpur deals with punishment, appeals etc. and it says that an employee shall be governed by the provisions of the relevant rules regarding imposition of penalties for breach of any of these rules, and preference of appeals against such action taken against him. The punishing authority in case of Principal is Chairman of Board of Governors and the appellate authority is Board of Governors. However, it does not say about removal of the employee/ Principal of the Institution which is very much relevant for determination of issue involved in the case. However, rule 11 of the Terms and Conditions of Service of Permanent Employees at the Institute says : Any member of the staff may be placed under suspension for good and sufficient reasons under the following circumstances. (a) Where disciplinary proceedings against him are contemplated or are pending. (b) Where a case against him in respect of any criminal offence is under investigation or trial : Provided that no order for suspension of a member of the staff shall be passed by any authority subordinate to that by which he was appointed. Rule 12 deals with penalties and it says : The following penalties may for good and sufficient reasons and as hereinafter provided, be imposed on any member of the Staff : (i) Censure; (ii) Withholding of increments or promotion; (iii) Recovery for whole or part of any pecuniary loss caused to the Institute by negligence or breach of orders; (iv) Reduction to a lower service, grade or post or to a lower time-scale, or to a lower stage in a time-scale. (v) Removal from service which shall not be disqualification for further employment in the Institute. (vi) Dismissal from service which shall ordinarily be a disqualification for further employment in the Institute. (v) Removal from service which shall not be disqualification for further employment in the Institute. (vi) Dismissal from service which shall ordinarily be a disqualification for further employment in the Institute. No order imposing on any member of the staff any of the penalties specified at (iv) to (vi) above shall be passed by an authority subordinate to that by which he was appointed and except after an enquiry has been held in such manner as prescribed by the Board and the member of the Staff has been given reasonable opportunity of showing cause against the action proposed to be taken in r.egard to him. 13. From the aforesaid quoted provisions it is evident that rule 19 of the Service and Conduct Rules, R.I.T. Jamshedpur says that in case of Principal punishing authority would be Chairman of the Board of Governors but it does not specify the kind of punishment/ removal of the employee. The same has been explained in Rule 11 of the Terms and Conditions of Service of Permanent Employees of the Institute which says the member of the staff may be placed under suspension but no order of suspension of member of the staff shall be passed by any authority subordinate to that by which he was appointed. Rule 12 makes it further clear which deals with punishment and it says that no order imposing on any member of the staff any of the penalties specified in item no (iv) to (vi) i.e. reduction to a lower service, grade or post etc., removal and dismissal from the service shall be passed by an authority subordinate to that by which he was appointed. 14. At this juncture it would be pertinent to consider the provisions of the General Clauses Act, 1897 (Central). Section 16 of the General Clauses Act deals with power to appoint to include power to suspend or dismiss and it says whera by any (Central Act) or regulation, the power to make any appointment is conferred, then unless different intention appears, the authority having (for the time being) power to make appointment shall also have power to suspend or dismiss any person appointed (whether by itself or any other authority) in exercise of that power. Section 14 deals with power conferred to be exercisable from time to time and it says (i) where, by any (Central Act) or regulation made after the commencement of this Act, any power is conferred then (unless a different intention appears) that power may be exercised from time to time as occasion requires. It is thus evident from the aforesaid provision that the authority who iscompetent to appoint has power to remove/dismiss the employee unless different intention appears. Similarly such power can be exercised by the authority from time to time as the occasion requires unless different intention appears. It has already been stated that there is no different intention in the rules of R.I.T. Jamshedpur rather rules also say that no order can be passed with respect to removal/dismissal by an authority subordinate to that by which he was appointed. In the case of State of Maharashtra vs. Narayan Shamrat Puranik & Ors., A.I.R. 1983 S.C. 46 the provisions of section 14 of the General Clauses Act has been considered and it has been held that section 14 embodies uniform rule of construction. That power may be exercised from time to time when occasion arises unless a contrary intention appears is, therefore, well settled. A statute can be abrogated only by express or implied repeal. It cannot fall into desuetude or become inoperative through obsolescence or by lapse of time. 15. In the instant case at the relevant time the petitioner was Principal of R.I.T. Jamshedpur. He was appointed under Rule 19 of the Regional Institute of Technology, Jamshedpur by the board of governors with the approval of the Central and State Governments. While he was functioning as Principal, R.I.T. Jamshedpur the Government of Bihar constituted an Examination Committee in the year 1996 and the petitioner was appointed as member of the Examination Committee for conducting C.E.E.E. by the Bihar Government. The allegation has been made that he being a member of the said committee was involved in conspiracy to commit bungling in the said examination. The allegation has been made that he being a member of the said committee was involved in conspiracy to commit bungling in the said examination. Therefore, in case of Principal his appointing authority is Board of Governors with the approval of the Central and the State Government and in case of member of examination committee his appointing authority is Government of Bihar and as such he can be removed from the service only by the appointing authority i.e. Board of Governors with the approval of the Central and the State Governments and in case of member of examination committee by the State Government. Rule 19 of the Service and Conduct Rules, R.I.T. Jamshedpur says that Chairman of the Board of Governors would be punishing authority of the Principal but it does not specify the nature of punishment/removal of the employee. The nature of punishment has been specified in Rule 12 of the terms and conditions of the service of permanent employee at the Institute and it says that no penalties including dismissal/ removal shall be passed by an authority subordinate to that by which he was appointed. Therefore, on consideration of the rules also it becomes evident that only the appointing authority has power to dismissal/ removal. Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act as quoted above make it clear that power of sanction of prosecution is with the authority which has power of removal. In the case in hand the sanction of prosecution has been granted by the Chairman of the Board of Governors. The Chairman of the Board of Governors alone is not Board of Governors. Moreover, the appointing authority no doubt is Board of Governors but with the approval of the Central and the State Governments. Further more, at the relevant time the petitioner was discharging the obligation being a member of the examination committee constituted/ appointed by the Government of Bihar and only Government of Bihar was competent to remove the petitioner as member of the examination committee. The sanction for prosecution has not been granted either by the Board of Governors with the approval of the Central and the State Governments or by the State of Bihar who has constituted/ appointed the petitioner as member of the examination committee. The sanction for prosecution has not been granted either by the Board of Governors with the approval of the Central and the State Governments or by the State of Bihar who has constituted/ appointed the petitioner as member of the examination committee. Sub-section (2) of Section 19 of Prevention of Corruption Act, 1988 says that where for any reason what- so-ever any doubt arises as to whether the previous sanction as required under sub-section (i) 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. Thus in any view of the matter, it becomes crystal clear that the Chairman was not competent to sanction prosecution as he was not the appointing authority or had power to remove the petitioner. 16. Rule 15 of rules of R.I.T., Jamshedpur deals with power and function of the Board. Sub-clause (xiv) is with respect to delegation of powers and it says any or all of its powers can be delegated to the officers of the Society for the administration of the affairs of the Society. Nothing has been brought on record to show that Chairman of the Board was delegated/ authorised to sanction prosecution of the petitioner. In the case of Parmanand Dass vs. State of Andhra Pradesh, AIR. 1978 S.C. 1475 the Apex Court has held that sanction order was not valid as the Special Officer who was entitled under the Act has not given the sanction as a Special Officer or by himself exercising the powers of the Standing Committee but issued the sanction order in pursuance of the sanction given by the Standing Committee. The plea that the Standing Committee and the Special Officer are one and the same cannot be accepted in the circumstances. In the instant case there is nothing on the record to show that the Chairman of the Board was delegated/authorised to sanction prosecution by the Board. Therefore, on this count also the Chairman cannot be held to be competent authority to sanction prosecution. 17. Thus on consideration as discussed above it is manifest that sanction for prosecution has been granted by the Chairman of the Board of Governors who was not competent to sanction prosecution. Therefore, on this count also the Chairman cannot be held to be competent authority to sanction prosecution. 17. Thus on consideration as discussed above it is manifest that sanction for prosecution has been granted by the Chairman of the Board of Governors who was not competent to sanction prosecution. Accordingly, the application is allowed and the order dated 19.10.2001 whereby cognizance was taken against the petitioner by the Special Judge, C.B.I., North Bihar, Patna in Special case no. 23/97/ R.C. No. 43/97 is hereby quashed. B.N.P.Singh, J. 18 I agree.