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2009 DIGILAW 673 (RAJ)

Kishan Lal v. State of Rajasthan

2009-03-04

GOVIND MATHUR

body2009
Hon ble MATHUR, J.—The petitioner, a lower division clerk, with Department of Irrigation suffered a trap on basis of a written complaint submitted by one Sh. Shankar Lal with allegation against petitioner for demanding bribe for a sum of Rs. 3000/-. The trap was laid by the Additional Superintendent of Police, Rajasthan State Bureau of Investigation on 15.10.1996, but no money as alleged was recovered from the petitioner. The Executive Engineer, in subordination of whom the petitioner was posted, after considering all circumstances relating to the incident of trap aforesaid informed the Superintending Engineer, Irrigation Circle, Sriganganagar that no prima facie case against the petitioner was made out, therefore, no necessity is there to place him under suspension as per the provisions of Rule 13(2) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. The Superintending Engineer at its own level also examined the matter and reached at the conclusion that suspension of the petitioner from service shall not be proper. The Chief Engineer, Irrigation, Hanumangarh Junction by his letter dated 26.11.1996 instructed the Superintending Engineer, Irrigation Circle, Sriganganagar to verify all necessary facts required for consideration of the issue relating to grant of sanction for prosecution of petitioner under Prevention of Corruption Act, 1988. In response thereto the Superintending Engineer vide communication dated 11.6.1997 informed the Chief Engineer that the petitioner was not concerned with the work relating to complainant Sh. Shankar Lal and also that the work concerned stood completed even prior to incident of trap made by the Rajasthan Anti Corruption Bureau on 15.10.1996, therefore, no need was there to grant sanction for prosecution. The Chief Engineer also considered all relevant issues at his own level, and thereafter, convened a meeting with Addl. Superintendent of Police, Rajasthan State Investigation Bureau, Superintendent of Police (Third), Rajasthan State Investigation Bureau on 19.12.1997. All the three officers referred above considered all the events taken place on 15.4.1997 and reached at the conclusion that the petitioner had no role to deal with the work relating to complainant Sh. Shankar Lal and also that the petitioner was not at all concerned with any demand as alleged in the complaint. Accordingly, a conscious decision was taken for not according sanction to prosecute the petitioner. A detailed note made by the Committee of the officers mentioned above is available on record as Annexure-10. Shankar Lal and also that the petitioner was not at all concerned with any demand as alleged in the complaint. Accordingly, a conscious decision was taken for not according sanction to prosecute the petitioner. A detailed note made by the Committee of the officers mentioned above is available on record as Annexure-10. Subsequent thereto, the Deputy Secretary to the Government of Rajasthan, Department of Irrigation after a lapse of about 29 months instructed the Chief Engineer (North) Irrigation Department, Hanumangarh Junction under a communication dated 23.9.1999 to issue sanction to prosecute the petitioner, the contents of the letter dated 22.9.1999 are quoted below: ^^mijksä fo"k;kUrxZr funsZ kkuqlkj ys[k gS fd miyC/k fjdkMZ dk ijh{k.k djus ij ik;k x;k fd Jh fd kuyky lqFkkj] dfu"B fyfid ds fo:) vfHk;kstu pykus gsrq izFke n`"V;k dSl curk gSA vr% Jh fd ku yky lqFkkj] dfu"B fyfid ds fo:) vfHk;kstu Loh—fr tkjh dj bl foHkkx dks lwfpr djus dk d"V djsaA** 2. In pursuant to the letter dated 23.9.1999 the Chief Engineer Irrigation (North) Hanumangarh Junction passed an order dated 15.10.1999 granting sanction for prosecution of the petitioner. The order dated 15.10.1999 reads as follows: ^^mijksä fo"k;kUrxZr Jheku~ kklu mi lfpo flapkbZ foHkkx] jktLFkku t;iqj ds i=kad ia- 31¼4½ flapkbZ@96 fnukad 2-9-99 ds vuqØe esa vfHk;ksx la[;k 219@96 esa Jh fd ku yky lqFkkj d-fy- ds fo:) vfHk;kstu pykus gsrq vfHk;kstu Loh—fr tkjh dh tkrh gSA Jh gjhjke p-Js-deZpkjh ds fo:) vfHk;kstu Loh—fr v/kh{k.k vfHk;Urk flapkbZ o`r Jhxaxkuxj ds i= la[;k ,Q-LFkk- 11@4007-09 fnukad 4-8-97 }kjk iwoZ esa gh tkjh dh tk pqdh gSA** 3. Being aggrieved by the letter dated 23.9.1999 issued by the Deputy Secretary to the Government of Rajasthan instructing the Chief Engineer, Department of Irrigation, Hanumangarh Junction and the order dated 15.10.1999 passed by the Chief Engineer Irrigation (North), Hanumangarh Junction granting sanction to prosecute the petitioner this petition for writ is preferred. The petitioner has also made a prayer for not placing him under suspension as a consequent to grant of sanction for prosecution. This Court vide order dated 6.12.1999 restrained the respondents from suspending the petitioner as a consequent to grant of sanction. 4. While challenging the order dated 15.10.1999 granting sanction to prosecute the petitioner under Prevention of Corruption Act, 1988, the contention of Sh. This Court vide order dated 6.12.1999 restrained the respondents from suspending the petitioner as a consequent to grant of sanction. 4. While challenging the order dated 15.10.1999 granting sanction to prosecute the petitioner under Prevention of Corruption Act, 1988, the contention of Sh. Vineet Dave, learned counsel for the petitioner, is that as per Rule 19(1)(c) of the Prevention of Corruption Act, 1988 no court is required to take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove the person concerned from office. The competent authority to remove the petitioner from office is the Chief Engineer, however, in the instant case the Chief Engineer has simply acted upon the instructions given by the Deputy Secretary to the Government of Rajasthan, thus, the present one is a case of abdication of powers, therefore, the order impugned granting sanction to prosecute the petitioner is not in consonance with the provisions of Section 19(1)(c) of the Act of 1988. It is also contended by learned counsel for the petitioner that a conscious decision for not granting sanction to prosecute the petitioner was taken by the Chief Engineer, Department of Irrigation, who is the authority competent, on 19.12.1997 after due consultation with Additional Superintendent of Police, Rajasthan State Investigation Bureau, Sriganganagar and Superintendent of Police (Third), Rajasthan State Investigation Bureau, Jaipur, therefore, no need was there to alter the decision already taken. As per learned counsel for the petitioner, for any reason if such alteration was required then that could have been made only after providing cogent reasons to do so and in the letter dated 23.9.1999 and order dated 15.10.1999 absence of such reasons is on face. 5. A reply to the writ petition is filed on behalf of the respondents stating therein that the State considered the entire matter at its own level and reached at the conclusion that prima facie case was there warranting prosecution of the petitioner for the offences punishable under the Prevention of Corruption Act, 1988, therefore, necessary directions were given under the letter dated 23.9.1999. to the Chief Engineer, who is the authority competent for grant of sanction to prosecute the petitioner. The Chief Engineer in his turn granted required sanction accordingly. to the Chief Engineer, who is the authority competent for grant of sanction to prosecute the petitioner. The Chief Engineer in his turn granted required sanction accordingly. It is also urged that the issue regarding grant of sanction for prosecution by a competent authority is required to be examined by the court competent to take cognizance of the offence punishable under Section 7, 10, 11, 13 and 15 of the Act of 1988 and not by this Court while exercising powers under Article 226 of the Constitution of India. 6. Heard counsel for the parties. 7. Section 19(1)(c) of the Act of 1988 provides that no court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with previous sanction for any person not covered under Section 19(1)(a) and 19(1)(b) by the authority competent to remove him from his office. In the instant matter admittedly the authority competent to remove the petitioner from office is the Chief Engineer, Department of Irrigation. The Chief Engineer, Department of Irrigation on 19.12.1997 after considering all necessary facts reached at a definite conclusion regarding non-involvement of the petitioner with regard to any deal relating to the complainant Sh. Shankar Lal. Accordingly, a conscious decision was taken after consulting Addl. Superintendent of Police, Rajasthan State Investigation Bureau, Sriganganagar and Superintendent of Police (Third), Rajasthan State Investigation Bureau, Jaipur for not granting sanction for prosecution of the petitioner. It is only the Deputy Secretary to the Government of Rajasthan who instructed the Chief Engineer to issue sanction required for prosecution of the petitioner under Prevention of Corruption Act, 1988. The Chief Engineer by the order dated 15.10.1999 simply by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan under the letter dated 23.9.1999 granted sanction for prosecution of the petitioner. The order dated 15.10.1999 no where reflects application of mind by the authority competent. The Chief Engineer being the authority competent for grant of sanction to prosecute the petitioner for the offences punishable under the Act of 1988 was required to apply his mind objectively before granting sanction for prosecution of the petitioner. He is not supposed to act merely as an orderly to execute command of an administrative officer. The Chief Engineer being the authority competent for grant of sanction to prosecute the petitioner for the offences punishable under the Act of 1988 was required to apply his mind objectively before granting sanction for prosecution of the petitioner. He is not supposed to act merely as an orderly to execute command of an administrative officer. By a statute an important power is conferred upon him and such power must be exercised objectively, independently and by due application of mind. 8. In the present case a conscious decision was taken by the competent authority on 19.12.1997 after making necessary consultation with responsible Police Officers for not granting sanction to prosecute the petitioner. Such an important decision stood altered by the Chief Engineer in highly casual manner just on receiving instructions from Deputy Secretary to the Government of Rajasthan. May this alteration be due to fear psychosis or due to a tendency to accept every instruction given by the administrative authorities, even by ignoring statutory obligations but the resultant is abduction of powers of the competent authority by Deputy Secretary of the Government. The Government, if was not satisfied with the decision taken by the competent authority, could have suggested its view with cogent reasons to reconsider the decision, but in no event it was proper to give command to the authority competent having statutory power for granting sanction for prosecution. The irritating feature of the case is that the competent authority has given sanction to prosecute the petitioner without application of mind just by acting upon instruction given by a person who is otherwise stranger, so far as the requirement of statute is concerned. Therefore, such order can very well be termed as an order without jurisdiction. 9. I also find merit in other contention of learned counsel for the petitioner that the Chief Engineer for any reason, if was of the opinion that his earlier decision regarding grant of sanction for prosecution of the petitioner for the offences punishable under the Act of 1988 deserves alternation then he should have furnished reasons for that. 10. In the instant matter the competent authority arrived at a definite conclusion after considering all relevant facts pertaining to the incident concern, however, while altering that on 15.10.1999 no reason to do so is recorded. 10. In the instant matter the competent authority arrived at a definite conclusion after considering all relevant facts pertaining to the incident concern, however, while altering that on 15.10.1999 no reason to do so is recorded. It is also relevant to note that the competent authority has not recorded reasons to get himself satisfied to change its earlier decision even in his own record as it is apparent from perusal of the order impugned itself which clearly shows that the sanction was granted merely by acting upon instructions received under the letter dated 23.9.1999. 11. So far as the arguments advanced by learned counsel for the respondents that the issue regarding competence of the authority granting sanction is not required to be examined by this Court but by the court competent to take cognizance of offence, I am of the view that the powers of the writ court are quite wide and while exercising powers under Article 226 of the Constitution of India, a writ court cannot and should not clip its wings that ultimately results in perpetuation of gross illegality. If adequate facts to adjudicate an issue are available on record or the question sought to be agitated is purely legal, this Court has all authority to examine validity of such issues. Beside that the court competent to take cognizance could have not gone beyond the formal sanction granted by the prescribed authority as per requirement of Section 19(1)(c) of the Act of 1988, but this court has ample power under Article 226 of the Constitution of India, even to ponder the facts hidden under carpet. 12. In view of whatever discussed above, I am inclined to accept this petition for writ. Accordingly, the same is allowed. The sanction granted by the Chief Engineer (North), Hanumangarh Junction, Department of Irrigation under the order No.F6/Vidhi/940/96 dated 15.10.1999 to prosecute the petitioner for the offences punishable under the Prevention of Corruption Act, 1988 relating to criminal case No.219/1996 is declared illegal, and therefore, is quashed without having any effect to the sanction already granted on 4.8.1997 to prosecute Sh. Hari Ram, a class IV employee. No order as to cost.