Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 1323 (PNJ)

Mohammed Iqbal Bhatti v. State Of Punjab

2005-12-22

BALDEV SINGH, J.S.NARANG

body2005
Judgment J.S.Narang, J. 1. This petition has been filed under Articles 226/227 of the Constitution of India, for issuance of a writ in the nature of certiorari for quashing the order dated September 30, 2004, copy Annexure P3, vide which the sanction to prosecute the petitioner has been granted which had been earlier refused. 2. The brief facts which need to be noticed are that the petitioner was appointed as a Block Development and Panchayat Officer on June 27, 1985. He was further promoted as District Development and Panchayat Officer in the year 1996. It has been averred that throughout his career of 20 years, no complaint had ever been made against the petitioner and that the work and conduct of the petitioner has always been found to be good. 3. In the year 2001, when the petitioner was posted as District Development and Panchayat Officer, Ferozepur, a case had been registered under the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act"). On September 6, 2001, pursuant to a complaint made by one of the Members of the Panchayat Shri Hans Raj, the petitioner was arrested by the Vigilance Bureau and was subsequently released on bail by an order passed by the Special Court, Ferozepur. The petitioner made a detailed representation to the higher authorities vis-a-vis the allegations levelled against him at the instance of the complainant. He also placed on record the documentary evidence as also the material irregularities committed at the relevant quarters. A thorough investigation was carried out and certain clarifications were asked for from the Vigilance Bureau in regard to the case initiated against the petitioner. Finally, the inquiry report was submitted in favour of the petitioner 4. In the meanwhile, the Vigilance Bureau had moved the department for seeking necessary sanction for prosecuting the petitioner as required under Section 19 of the Act. The matter was taken up with the concerned quarters and that the petitioner had again submitted detailed submissions in writing and the authorities came to a finding that the petitioner was absolutely innocent and that there were grave lacunae in the inquiry conducted by the Vigilance Department. The matter was taken up with the concerned quarters and that the petitioner had again submitted detailed submissions in writing and the authorities came to a finding that the petitioner was absolutely innocent and that there were grave lacunae in the inquiry conducted by the Vigilance Department. Upon consideration of the totality of the facts and circumstances spelt out from the record as also the written submissions made by the petitioner, a detailed order dated 15.12.2003, had been passed by the Special Secretary Government of Punjab Department of Rural Development and Panchayat, copy Annexure P2. The relevant excerpt from the afore-stated reads as under: "3. After minutely going through the averments made in the representation submitted by the said officer the Honble Minister issued order for submitting the file. After scrutinizing the file by the Honble Minister it was found that the Vigilance Department has been unable to provide the clarification with regard to certain points as asked by the Panchayat Department from the Vigilance Department from which it is clear that they did not want to submit the clarification and want the true facts remain hidden and not come to the fore. Therefore, in this situation the sanction to prosecute Sh. Bhatti by the Vigilance Department is refused. The record sent along with the reference letter by the Vigilance Department is returned in original. Encl : 1. Letter for prosecution sanction 2 pages. Sd/- Special Secretary 2. Police File 1-54 Government of Punjab 3. Challan File 1-57 Village Development and Panchayat 4. Checking Memo 4 pages photostat Department". It was in August 2004, with the reshuffle in the cabinet the Vigilance Bureau submitted a representation to the Secretary for reviewing the earlier order dated December 15, 2003. The Secretary granted sanction for prosecution of the petitioner. It is believed that without recording any reasons the file was sent to the concerned quarters and that without giving any opportunity of being heard to the petitioner, the earlier order was reviewed and the sanction for prosecuting the petitioner was granted vide order dated September 30, 2004, copy Annexure P3. The petitioner has filed the present petition, making the afore-stated the subject matter of challenge. Notice of motion was issued vide order dated 15.10.2004 by a Division Bench of this Court and that the operation of the impugned order was also stayed. 5. The petitioner has filed the present petition, making the afore-stated the subject matter of challenge. Notice of motion was issued vide order dated 15.10.2004 by a Division Bench of this Court and that the operation of the impugned order was also stayed. 5. The State has filed written statement contesting the petition accordingly. The stand taken is that the allegations against the petitioner have been that he had demanded illegal gratification of Rs. 5000/- firstly on 29.8.2001, from Shri Hans Raj against the grant of approval for raising the level of the streets and drains of the village. The settlement was made at Rs. 2,500/- on September 6, 2001 in presence of one Shri Satnam Rai son of Mohan Lal and that the illegal gratification was received by the petitioner. The proceedings had been initiated under the Act and the petitioner had been arrested and remained behind bars for 119 hours. However, it has been admitted that the clarifications asked for by the concerned quarters had not been received from the Vigilance Bureau and the Government had refused the sanction vide order dated December 15, 2003 for prosecution of the petitioner. The clarification was sent by the Vigilance Bureau vide order and that after considering the clarification, sanction to prosecute the petitioner was granted. 6. During the course of hearing we had raised the query as whether the impugned order dated September 30, 2004, had been passed in supersession of the previous order i.e. dated 15.12.2003. Learned Additional Advocate General was not able to answer this question for want of the record. By our order dated 13.12.2005 we had directed the respondents to produce the relevant record on the date fixed. We have perused the record and have apprised ourselves with regard to the facts emerging therefrom. 7. Learned counsel for the petitioner has argued that admittedly the Government had earlier passed an order declining the sanction to prosecute the petitioner in terms of Section 19 of the Act. It is the settled law that once the Government has applied its mind and exercised its statutory powers which can be exercised only once, later on it cannot change its mind and pass a fresh order taking a different view on the same facts. If such power is permitted to be exercised in this manner, there will be no end to the exercise of such power. If such power is permitted to be exercised in this manner, there will be no end to the exercise of such power. There is no specific provision empowering the State Government to pass a second order on the same fact after expressly or by necessary implications. There may be a difference in passing an administrative order in exercise of its statutory authority under the specific statute, however, this would district be distinct from its administrative executive authority under Article 162 of the Constitution. The general power of the Government to rescind and vary its order has to be kept at a different level than the order which the government has the authority to pass on the basis of a statute framed by the Parliament or the State Legislature. It is obvious if the government has not exercised its powers finally and has dribbled by not giving firm decision, the exercise of the power cannot be said to have been exhausted and that in such a situation there would be no bar in the exercise of such power. Thus once having exercised its power, the goverment has no power or authority to pass a fresh order upon the matter where the power has to be exercised under the statute as in the case at hand under Section 19 of the Act. In this regard reliance has been placed upon a Division Bench judgment of this Court rendered in re Surjit Singh v. State of Punjab and others, 1980(1) ILR 11. The relevant excerpt reads as under : "(21) After hearing the learned counsel for the parties on the first point, we are of the opinion that an order under Section 197 of the Code is an administrative order and that the Government has no power to review its earlier order passed under the said section. Even in the case of administrative orders it has been held by the Supreme Court in D.N. Gangulys case (supra) that in the absence of a provision granting power to the Government to cancel or supersede its earlier order, no such power can be claimed on the strength of Section 21 of the General Clauses Act. Even in the case of administrative orders it has been held by the Supreme Court in D.N. Gangulys case (supra) that in the absence of a provision granting power to the Government to cancel or supersede its earlier order, no such power can be claimed on the strength of Section 21 of the General Clauses Act. It may be mentioned that before us the counsel for the State has not relied on the provisions of the General Clauses Act to support the power of the State Government to review its earlier order, but argued purely on the basis of Governments administrative or executive power to pass orders on the same matter from time to time, and no fetter can be placed on such a power of the State Government according to the argument raised. With this broad argument of the learned counsel for the State, we are not impressed and we are unable to uphold the same. The Government does not act in administrative capacity while passing an order under Section 197 of the Code and we may say that the Government is exercising a statutory power and that power can be exercised by it only once in whatever way it chooses to do, but later on it cannot change its mind and pass a fresh order taking a different view, otherwise there will be no end to the exercise of his power. In a given case, if we permit the power of review, it may be exercised a number of times on the same facts. We draw support for the above view from the decision of the Supreme Court in D.N. Gangulys case (supra) as well as from Hardyal Rais case, Venkatesh Yeshwant Deshpandes case, Bherumals case and Kanta Devis case (supra). In all these cases, a fresh order was sought to be passed second time and there was no power for doing so under any of the concerned provisions of the General Clauses Act where power to rescind or cancel was contained. In all the aforesaid cases, it was ruled that order could not be passed a second time rescinding, cancelling or varying the earlier order and the orders passed second time were held to be null and void and were quashed. In all the aforesaid cases, it was ruled that order could not be passed a second time rescinding, cancelling or varying the earlier order and the orders passed second time were held to be null and void and were quashed. Same is the position here that there is no specific provision empowering the State Government to pass a second order on the same facts either expressly or by necessary implication. There may be difference in passing an administrative order in exercise of its statutory authority under a specific feature in contradiction to its purely administrative or executive authority under Article 162 of the Constitution. Therefore, the general power of the Government to rescind or vary its order has to be kept at a different level than the order which the Government has the authority to pass on the basis of a statute framed by Parliament or the State Legislature. So far as the decision of the Supreme Court in M/s. Western India Watch Co.s case (supra), is concerned, the passage quoted above itself has shown exercise its power and the cases where the Government (sic) has the distinction between the cases when the Government refuses to exercise its power. This case as well as D.N. Gangulys case (supra) are under Section 10 of the Industrial Disputes Act and a reasonable way to read them would be that if Government has exercised its powers once, it cannot exercise the same power in a given case for the second time. But if the Government has not exercised its power, it has not exhausted its power to act and there is no bar in the exercise of that power." 8. So far as the present case is concerned, the Government positively exercised its power under Section 197 of the Code, vide annexure P-2, dated July 10, 1973 the following terms: "....... The State Government after careful consideration of the matter have decided that permission sought by Shri Mohinder Singh for launching prosecution under Section 197 Cr.P.C. against Sarvshri Surjit Singh and Sukhdevinder Singh, then D.S.Ps., Ropar, be refused ...........". A reading of the above shows that in exercise of its power, the Government carefully considered the entire matter and declined the permission sought for launching prosecution under Section 197 of the Code. A reading of the above shows that in exercise of its power, the Government carefully considered the entire matter and declined the permission sought for launching prosecution under Section 197 of the Code. Therefore, once having exercised its power, the Government had no jurisdiction or authority to pass a fresh order, annexure P-3, on the same matter. Hence, the order annexure P-3 amounts to review of order annexure P-2, and as such is illegal and without jurisdiction. We decide point No. 1 in favour of the petitioner. 9. As regard point No. 2, that the Government having once exercised its power under Section 197 of the Code, had exhausted its power and as such it could not exercise the same for the second time, we are inclined to hold that there is merit in this contention. The power given to the State Government under Section 197, having been exercised by it while passing the first order, annexure P-2, stood exhausted and the same could not be exercised second time while passing the impugned order, annexure P-3. For this decision of ours, we find support not only from the decision in Kanta Devis case (supra), but also from the quotation reproduced above in the case of M/s. Western India Watch Co.s case (supra), wherein the Supreme Court did consider the question of exhausting the power. In that case it came to the conclusion that since the Government had refused to exercise its power, therefore, it was not exhausted. The necessary implication that if the power had been exercised, then the same could not be exercised twice over. Furthermore, we find support from the decision of the Supreme Court in D.N. Gangulys case (supra) where the subsequent order was held to be bad although not on the reasoning that the power had been exhausted while passing the earlier order. Hence, we hold that the Government exhausted its power under Section 197 of the Code while passing the earlier order, annexure P-2 and it could not exercise that power twice over while passing the impugned order, annexure P-3. On this ground also, the impugned order annexure P-3 is liable to De quashed as being null and void. He has also referred to another judgment of this Court rendered by the learned Single Judge of this Court in re Dr. On this ground also, the impugned order annexure P-3 is liable to De quashed as being null and void. He has also referred to another judgment of this Court rendered by the learned Single Judge of this Court in re Dr. Jaswinder Kaur v. State of Punjab and another, 2001(2) RCR(Criminal) 58, wherein it has been categorically held that as soon as the earlier order refusing to grant sanction was signed the competent authority became functus officio, merely because the Vigilance Bureau had asked for the reasons for the refusal of the sanction could not be a ground to review the earlier order. 10. Learned counsel has placed reliance upon a Division Bench judgment of Himachal Pradesh High Court rendered in re Omkar Sharma etc v. State of H.P. and others, 2003(2) RCR(Criminal) 512, wherein it has been held that sanction for prosecution of a public servant refused by the competent authority, such authority cannot review and revise the order on the same material and grant sanction for prosecution. The power to review is not an inherent power, it must be conferred by law either specifically or by necessary implications. Reliance has been placed upon the judgment rendered by the Honble Supreme Court of India in re Ramanand Chaudhary v. State of Bihar, (2002)1 SCC 153 : 1994(2) RCR(Cri) 491 (SC). The relevant para 36 is reproduced here as under : "33. What follows from the aforesaid discussion is that appropriate authority who on consideration of all the material had refused to accord sanction to prosecute a public servant, has no power on re-consideration to review such an order and thereby according sanction to prosecute on the same material. It will be a totally different situation if any additional/fresh/new material is brought before the competent authority; that admittedly is not the situation in all the three cases nor is the case of any one of the respondents set out in their replies. Similarly, the long gap after completion of investigation and the grant of sanction is an additional ground to grant relief to the petitioners in all these three cases." 11. Similarly, the long gap after completion of investigation and the grant of sanction is an additional ground to grant relief to the petitioners in all these three cases." 11. Further reliance has been placed upon a Division Bench judgment of Honble Allahabad High Court rendered in re Vijai Bahadur v. State of U.P. and others, 1989 Cri L.J. NOC (All) 61, wherein it has been categorically held that once having refused after carefully considering the material on record, the same authority is precluded from recalling it or passing a fresh order on the same material because of erroneous impression. It has also been held that Section 6 of the Prevention of Corruption Act, 1947, extends protection to a public servant against unwarranted harassment. Therefore, it should be construed in a manner which subserves the objective of its enactment. 12. On the other hand, learned Additional Advocate General has argued that the earlier order i.e. dated December 15, 2003, had been passed as the complete material could not be placed by the Vigilance Bureau before the competent authority. It is on submission of the complete material by the Vigilance Bureau subsequently, the order dated September 30, 2004 was passed by the competent authority by reviewing the earlier order. The power to review has been misconstrued by the petitioner, in fact the subsequent order is based upon absolutely new material and the order would be in supersession of the earlier order. There is no bar under law that if the fresh material comes to the knowledge of the competent authority, the sanction cannot be granted and that the earlier order passed in favour of the petitioner would in any manner, come in the way of the competent authority. It is absolutely clear that the previous order mentions very clearly that the report has not been submitted by the Vigilance Bureau, therefore, the sanction cannot be granted. It is definitely a different story when the positive new material is produced before the competent authority. The subsequent act would be a new act committed by the competent authority based on the positive material produced before it. 13. We have heard learned counsel for the parties and have also perused the paper book as also the record produced before us. 14. The subsequent act would be a new act committed by the competent authority based on the positive material produced before it. 13. We have heard learned counsel for the parties and have also perused the paper book as also the record produced before us. 14. It is the admitted case that the matter was laid before the competent authority by the concerned quarters for obtaining the sanction to prosecute the petitioner as envisaged under Section 19 of the Act. The request for sanction was made before the competent authority and that the said authority had asked for the production of the material in support of their case. In this regard, the correspondence ensued between both the departments for almost three years, despite the opportunity granted to the Vigilance Department, it had failed to submit the clarifications as asked for which is indicative from the order dated December 15, 2003. The relevant para reads as under : "With regard to the above mentioned subject and vide letter under reference you had sought permission to prosecute Sh. Mohammed Iqbal Bhatti, District Development and Panchayat Officer and keeping in view the instructions issued by the Vigilance Department bearing No. 19/4/99-4D(1)/1020 dated 16.1.2002 the official connected with the case was given a personal hearing by the then Financial Commissioner Village Development. During the personal hearing and as per the certain documents submitted by the concerned officer and also taking into consideration his few points, the Vigilance Department was asked to clarify certain points as per the department letter No. 6/37/2001-3R.D.E.- 3/5980 dated 28.8.2002 after sending the photocopies of the documents submitted by the said officer. The Vigilance Department again vide letter No. 36/118/2001-2VA/7360 dated 24.3.2003 after sending the copy of the report of Deputy Superintendent of Police, Vigilance Bureau, Ferozepur dated 17.12.2002 again requested for prosecution of Sh. Bhatti. This department again through its department letter No. 6/37/2001-3R.D.E.-3/5081 dated 9.6.2003 again asked for complete clarification based upon concrete evidence with regard to the points raises in its letter dated 29.8.2002 which have not been received till date" It is obvious that certain queries had been raised which are not discernible from the order, which have remained unanswered and which culminated into the passing of the order dated December 15, 2003, copy Annexure P2, vide which the sanction to prosecution the petitioner had been refused. 15 We have perused the impugned order dated September 30, 2004. This order does not talk of the deficiency in the order dated December 15, 2003, nor it is indicative that the same has been passed in supersession of the said order. It is correct that the sanction required to be granted under Section 19 of the Act and Section 197 of the Code of Criminal Procedure, is not a quasi judicial order and that opportunity of being heard was not required to be granted to the petitioner. However, passing of the impugned order would not amount to reviewing the order passed by the competent authority. Learned Additional Advocate General has not been able to show any provision under the Act or under any other statute that such an authority had the specific power to review the earlier order. De hors this, there is nothing in the order supporting the argument of learned Additional Advocate General that the material which had been placed before the competent authority while passing the impugned order was never ever placed before the competent authority while passing the order dated December 15, 2003. It is also no where the case of the respondents that the points/clarifications raised had been duly complied with and which would entitle the respondents for passing a second order. It is in this regard, we had asked for the production of the record vide our order dated December 13, 2005. The perusal of the record categorically shows that the impugned order was never ever passed in supersession of the previous order. Further, it is nowhere is the case of the respondents that absolutely new fact had come to surface, which had been examined by the competent authority while granting the sanction for prosecuting the petitioner. We have perused the record and we find that the learned Legal Remembrancer and Secretary to Government of Punjab had made a reference to Dr. Jaswinder Kaurs case (supra) indicating that the Government had not refused to grant sanction but it had only taken a decision to drop departmental proceedings in that case and that the afore-stated judgment does not apply to the fact of the case but the pivotal fact remains to be kept in mind is that the order dropping the departmental proceeding had been made after the Vigilance Bureau had asked for sanction of the prosecution. Therefore, it may not be advisable now to grant sanction. In case the department is bent upon to grant sanction at this stage, the matter would require to be put up before the Chief Minister for modifying/reviewing the order passed by the then Minister for Rural Development and Panchayat, whereby departmental proceedings on these very allegations had been dripped. This opinion was of August 19, 2003, whereafter the order dated December 15, 2003, had been passed vide which the sanction for prosecuting the petitioner had been declined. The record which has been shown to us does not indicate that any new material had been placed before the competent authority for passing the impugned order except the communication received from Director, Vigilance Bureau, dated June 22, 2004, which makes a reference of the letter dated May 26, 2004, which again does not disclose any new material. We have also perused the noting dated 23.2.2004, vide which the detailed reference to the earlier decision of the government has been made vide which the sanction to prosecute the petitioner had been declined. It had also been suggested that the complaint of Hans Raj deserves to be filed. The order dated July 22, 2004, seems to have been passed by Rural Development and Panchayat Minister which is devoid of any discussion for the purpose of differing with the earlier order. Nothing has been opined as to whether the order would now be passed in supersession of the previous order and/or the authority has the power to review its earlier order. It is obvious that no new material was considered while passing the impugned order. 16. Once the government passes the order under Section 19 of the Act or under Section 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official reviewing such an order on the basis of the same material, which already stood considered would not be appropriate or permissible. The government is expected to act consciously and cautiously while taking such serious decisions. The perusal of the record shows that pointed queries had been raised to be answered by the Vigilance Bureau but no answer was forth-coming nor any had been submitted subsequently which culminated into passing of the later order dated September 30, 2004. The government is expected to act consciously and cautiously while taking such serious decisions. The perusal of the record shows that pointed queries had been raised to be answered by the Vigilance Bureau but no answer was forth-coming nor any had been submitted subsequently which culminated into passing of the later order dated September 30, 2004. We refrain ourselves from mentioning the queries which had been raised but it would suffice to say that the queries were never answered at the relevant time when the order dated December 15, 2003, had been passed nor the same were ever commented upon as no answers were placed before the competent authority for passing the impugned order dated September 30, 2004. 17. The government cannot act in a manner which may cause harassment to an employee or any person. Though the orders required to be passed while exercising the powers under Section 19 of the Act and Section 197 of the Code of Criminal Procedure cannot be termed as quasi judicial order, yet the orders have to be passed consciously and cautiously by applying the mind accordingly. In the present case, the impugned order has been passed in a very casual manner whereas the previous order had been passed after due deliberations and when the Vigilance Bureau was unable to give answers to the queries raised, the sanction had been declined. We have no reason to accept the contention of learned Additional Advocate General that the subsequent order i.e order dated September 30, 2004, was passed by due deliberations and upon the basis of the new facts disclosed or by way of applying mind or holding that the present impugned order is in superession of the previous order. 18. In view of the above, the petition is allowed and the impugned order dated September 30, 2004, copy Annexure P-3, is quashed. The petitioner is awarded the costs which are assessed at Rs. 25,000/-. Record produced has been returned through the learned Additional Advocate General.