Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 769 (CAL)

Susanta Kumar Dey v. UNION OF INDIA

2009-09-23

BISWANATH SOMADDER, S.S.NIJJAR

body2009
Judgment :- (1). This letters patent appeal has been filed against the judgment of the learned single Judge rendered in Writ Petition No. 5226 (W) of 2005 on 17th of November, 2006 whereby the learned single Judge has been pleased to dismiss the writ petition with costs. At the relevant time petitioner No. 1 was working as General Manager (Corporate Planning) of Northern Coalfield Ltd. He retired on 31st of March, 2005. He was posted as Manager of Kathara Colliery from August 17, "1983 to May 11, 1990. Petitioner No. 2 was working as Project Officer of Kathara Washery from June 26, 1989 to June 1, 1984. Petitioner No. 3 joined as General Manager of Kathara area of Central Coalfields Ltd. (hereinafter referred to CCL) on June 3, 1988 and left Kathara area on transfer on 17th of February, 1994. Petitioner No. 4 worked as Project Officer at the Kathara Colliery from June 6, 19.88 to September 30, 2002. One G. B. Mukerjee, Joint Secretary, Ministry of Coal, Government of India, lodged a complaint with director C.B.I. through Letter No. 13027/9/94 VIG dated 8, 1996 alleging that there had been false and fictitious dispatch of 7.33 lacs tonnes of coal from Kathara Colliery to Kathara Washery during a period 1989 to 1991. On the basis of the aforesaid complaint, the C.B.I, registered a case against petitioner No. 3, namely Aran Kumar Sinha (hereinafter referred to as Sinha) and other unknown officers as well as some private persons of the Kathara Colliery and Kathara Washery under Sections 120B, 420, 467, 468, 471, 477A, IPC and Section 13 (2) read with Section 13(l)(d) of the Prevention of Corruption Act, 1988. F.I.R. No. RC IC (A)/97 dated January 13, 1997 was filed. After investigation, charge-sheet was filed under Sections 120B and 477A IPC and under Sections 13(2) and 13 (l) (d) of the Prevention of Corruption Act, 1988. in the Court of Special Judge, C.B.I., Dhanbad, Jharkhand. The charges, mainly, are as follows :-(a) That the Petitioners while posted at Kathara area during the relevant period in connivance with each other caused to prepare false physical and stock statement as on June 9, 1988 showing the quantity of 4,73,371 tons of coal as non-despatchable mixed and deteriorated stock, although no stock was in existence. (b) that the writ petitioner Nos. (b) that the writ petitioner Nos. 3 to 4 had made the proposal to the Director (Technical and Operation) Central Coalfields Limited (in short CCL), Ranchi requesting for making arrangement for write off of the same as the said quantity of coal was actually a shortage found after the informal measurement was being done by the writ petitioner No. 4. (c) That the writ petitioner Nos. 3 to 4 in connivance with each other had also shown the inflated figures of production and dispatches in respect of Kathara Colliery. (d) That the writ petitioner Nos. 1, 3 and 4 had managed to manipulate CIL measurement to conceal shortage in connivance with each other by way of furnishing false quantity to the effect that the stock of slurry lying in the pond of Kathara Washery was slack coal stock of kathara Colliery. (e) That the writ petitioner No. 3 in connivance with the writ petitioner No. 4 herein had taken, the stock of slurry of Kathara Washery into account of Kathara Colliery even before its provisional approval on August 31, 1988. (f) That the writ petitioner Nos. 1, 3 and 4 had recommended the proposal for slurry adjustment and after approval by the Headquarter a huge quantity of slurry to the extent of 2,11,000 tons and 1,10,000 tons totalling 3,21,000 tons, (wrongly written as 3,31,000 tons) was adjusted during March 1990 to March, 1991). (g) That the writ petitioners herein had falsely shown the above noted stock transferred, from Kathara Colliery to Kathara Washery by creating false record though no stock was available at Kathara Colliery. (h) That the writ petitioner Nos. 3 and 4 signed a false and fake joint coal stock measurement statement of Kathara Colliery on March 16, 1991 falsely showing a physical stock of coal of 5,84,250 tons as on March 1, 1991 to justify the fictitious transfer of 3,30,000 tons of raw coal during the period March 19, 1991 to March 31, 1991. (i) The writ petitioner No. 2 had created fake record in the form of Letter No. KTW/ 1614 dated April 7/08, 1991 acknowledging the receipts of 3,62,056 tons coal from March 19, 1991 to March 31, 1991. (i) The writ petitioner No. 2 had created fake record in the form of Letter No. KTW/ 1614 dated April 7/08, 1991 acknowledging the receipts of 3,62,056 tons coal from March 19, 1991 to March 31, 1991. (j) That the writ petitioner No. 2 was fully aware of the fact that the measurement of raw coal stock of 84,389.40 tons is taken by his surveyor on March 23, 1991 but he yet got transferred 3,3.0,000 tons of raw coal against the aforesaid stock. (k) That the writ petitioner Nos. 1, 3 and 4 had issued false certificate on May 4, 1989 jointly showing the slurry of Kathara Washery pond as slack coal of Kathara Colliery by the side of the river so that the same may be included as colliery stock by the CIL team. (1) That the writ petitioner Nos. 1 and 4 did not maintain any physical coal stock measurement register but they have issued false certificate to this effect. (m) that the writ petitioners are responsible for making a mandatory loss to CIL to the tune of Rs. 6,79,92,880/-towards paying to cess and royalty of the over production showed by them. (2). the petitioners claim that the aforesaid charges are baseless. Since the merits of the issue involved in this case are not relevant, it would not be necessary to detail plea taken by the writ petitioners. Petitioners claim that the stock shortage in CCL on 31st of March, 1988 had been written off and it was approved by the CCL and CIL Boards. It is also a matter of records that no financial loss was caused. (3). So far the petitioner No. 1 is concerned, he had been issued a warning when he was working as Colliery Manager at Kathara Colliery during the period August 18, 1983 to 11th of May, 1990, to be careful while carrying out operational assignment n future. Therefore, petitioner No. 1 stood exonerated of the charges. Petitioner No. 4 was charge- sheeted by order dated 1-12-1999 for the same shortage of coal stock. However, none of the charges against him were proved. Therefore, he was also exonerated. Petitioner No. 3 was also completely exonerated by order of November 5/23 of 2001. (4). In spite of the exoneration, Chairman, CCL, illegally sanctioned the prosecution of the writ petitioners. However, none of the charges against him were proved. Therefore, he was also exonerated. Petitioner No. 3 was also completely exonerated by order of November 5/23 of 2001. (4). In spite of the exoneration, Chairman, CCL, illegally sanctioned the prosecution of the writ petitioners. The trial is continuing illegal against the writ petitioners on the basis of an illegal sanction order. It is further stated that in the charge-sheet it is wrongly claimed that a loss of Rs. 6,79,92,880/-had been caused. According to the writ petitioners, the complaint dated November 8, 1996 had been lodged by the then Joint Secretary, mala fide. Even otherwise it is vexatious and highly belated, The C.B.I, complaint was registered on January 13, 1987 for offences that were allegedly committed between the period 1989 to 1991. The charge-sheet has been filed in Court on August 29, 2003. (5). The petitioners also claim that they had left the Kathara Colliery on the following dates : Petitioner No. 1 : May 1990, Petitioner No. 2 : June 1994, Petitioner No. 3 : February, 1994 and Petitioner No. 4 : June, 1992. After they had left, a number of measurements were made by the CIL, check team and Ministry team in association with the successors of the petitioners. At that time the stock was found to be in order i.e., within the permissible limit of 5%. According to the petitioners there was no shortage of stocks. The petitioners, therefore, challenged the charge-sheet and the sanction order by filing a writ petition under Article 226 of the Constitution of India. Main grounds in the writ petition were that:- (1) That the F. I. R. is belated; (2) No offence under S. 477A, IPC and Section 13(1) of Prevention of Corruption Act are made out. Therefore, the charge-sheet is not maintainable; (3) Sanction orders have been made in an arbitrary, capricious, illegal, motivated, mala fide, and whimsical manner and without application of mind. The sanction orders have been issued without taking into account the relevant facts; (4) The petitioners having been exonerated in departmental proceedings on the same charges cannot be subjected to a criminal prosecution as well. (6). The sanction orders have been issued without taking into account the relevant facts; (4) The petitioners having been exonerated in departmental proceedings on the same charges cannot be subjected to a criminal prosecution as well. (6). Stand of the respondents, CBI and the Union of India before the learned single Judge were as follows :- ".....(1) Writ application is not maintainable in the High Court at Calcutta as admittedly a competent Court situated at Dhanbad within the State of Jharkhand, which is admittedly outside the territorial jurisdiction of High Court, Calcutta, has taken cognizance of the charge-sheet filed by the Investigating Officer and there is no cause of action of filing this writ in the High Court, Calcutta assailing the continuation of criminal proceeding with a relief as sought for praying quashing of charge-sheet, First Information Report and Sanction Order for prosecution as well as order of Court taking cognizance of offence on the basis of charge-sheet as filed. (2) The order of sanction though was issued by the Chairman cum-Managing Director of Coal India Limited having its Head Office at Netaji Subhash Road, Kolkata-1 within the State of West Bengal i.e. within the jurisdiction of the High Court, Calcutta, but the sanction order cannot be assailable herein as same has automatically merged with the criminal trial as is pending in the Court within State of Jharkhand while taking cognizance of the charge sheet and furthermore the sanction order is not vitiated on legal ground even if its challenge is maintainable in the High Court, Calcutta, as the ground of challenge, namely, non-consideration of papers of departmental proceeding, were not at all required to be considered by the Sanctioning Authority while according sanction for criminal prosecution. (3) Even if there is no valid sanction for prosecution under offences of Indian Penal Code, the same will not vitiate the trial as writ petitioners will get ample opportunity to challenge the same during the trial and as such the Writ Court will be slow to interfere with at this stage. (3) Even if there is no valid sanction for prosecution under offences of Indian Penal Code, the same will not vitiate the trial as writ petitioners will get ample opportunity to challenge the same during the trial and as such the Writ Court will be slow to interfere with at this stage. (4) That once a charge-sheet has been filed and cognizance taken by the competent Court of Criminal Jurisdiction whose office is situated admittedly outside the territorial jurisdiction of High Court, Calcutta, the High Court, Calcutta would be slow to disturb such proceeding not only on the embargo of jurisdictional issue but also on merit by taking judicial notice of document annexed in the affidavits, as consideration of the same would be nothing but a mini trial before the actual trial, which is not permissible under the Criminal Procedure Code. (5) That it is not a case wherein there is no materials in the FIR as already after investigation, a charge-sheet has been filed wherein there are enough materials, which upon consideration has already passed the stage of taking cognizance by the competent Criminal Court leading to the trial stage, as such, on the settled legal proposition the quashing of the criminal proceeding as well as the sanction order would be nothing but to quash a criminal action at the budding stage." (7). The learned single Judge, upon noticing the entire pleadings, framed five points which emerged for decisions. These five points are as follows :- "(1) Whether the writ application is maintainable in the High Court at Calcutta assailing the criminal proceeding in which a charge-sheet has already been submitted before the Special Court of CBI situated at a place, which is within the State of Jharkhand, outside the territorial jurisdiction of High Court, Calcutta and as to whether the order of sanction could be assailed in the High Court at Calcutta, when learned Special Court already has taken cognizance of charge-sheet. (2) Whether it is a fit case to interfere with at this stage when charge sheet has already been filed by the Investigating Agency and cognizance of which has already been taken issuing summons by the competent Court of Criminal jurisdiction. (3) Whether there is prima facie case made out to satisfy the test that it is a case of no offence as would empower this Court to quash the entire criminal proceeding. (3) Whether there is prima facie case made out to satisfy the test that it is a case of no offence as would empower this Court to quash the entire criminal proceeding. (4) Whether the sanction order issued by the competent authority is bad in law due to non-consideration of departmental records on the departmental proceeding and as to whether the sanctioning authority had the legal responsibility to pursue such documents. (5) In absence of any sanction under Section 197 of the Criminal Procedure Code whether entire criminal proceeding is to be quashed or it would be deemed as a simple irregularity, which could be rectified or cured at the time of trial." (8). After an elaborate discussion of the voluminous facts pleaded by the petitioners, the learned single Judge has decided all the five points against the writ petitioners. Hence the present appeal. (9). Mr. Bikash Bhattacharjee, learned senior counsel appearing for the petitioners, submits that the charge-sheets issued to all the appellants in the departmental proceedings are identical to the charges levelled against them in the CBI Court. Learned counsel makes a reference to the synopsis of the charge-sheets and compares the same with the charge sheets in the departmental proceedings and submits that both are almost identical. The petitioners having been exonerated departmentally, criminal proceedings cannot continue. In support of his submissions learned counsel relied on the judgment of the Supreme Court in the case of P. S. Rajya v. State of Bihar [ (1996) 9 SCC 1 )]. It is next submitted by Mr. Bhattacharjee that sanction order for taking criminal proceedings against S. K. Dey has been issued without application of mind. The language used in the sanction order is the same as the charge-sheet filed in the Court by the CBI. The sanction has been granted without adverting to the material facts. The fact that the officer had already been warned departmentally has not been noticed. In fact, the sanction order does not mention about the departmental enquiry. It relied only on the material given by the CBI. Sanction given in the case of A. K. Sinha suffers from the same defects. Any prosecution on the basis of such a sanction is liable to be quashed. In fact, the sanction order does not mention about the departmental enquiry. It relied only on the material given by the CBI. Sanction given in the case of A. K. Sinha suffers from the same defects. Any prosecution on the basis of such a sanction is liable to be quashed. In support of the submission the learned counsel relies on the judgment of Mahendra Lal Das v. State of Bihar [ (2002) 1 SCC 149 ]: 2001 Cri LJ 4718. (10). Learned counsel appearing for CIL submits that the question of sanction can be raised by the appellants even at the trial. Now that the special Court has taken cognizance, the matter cannot be permitted to be challenged in a writ petition. In any event, there is no sanction order for petitioners/appellants Nos.2 and 3 and no departmental enquiry was held in respect of Sinha. Only S. K. Dey had been cautioned to be careful in the future without holding any enquiry. Therefore, there can be no bar to the criminal trial on the ground that the writ petitioners have already been exonerated. Learned counsel reiterates that no sanction has been taken in respect of the retired employees at the time when the criminal complaint was filed on 8-11-1996. It is also submitted that S. K. Dey had been cautioned in a totally independent proceedings, which had nothing to do with the CBI trial. Similarly. K. N. Lal was exonerated in a departmental enquiry, in respect of different charges. Learned counsel submits that the entire issue has to be decided on merits as a trial. Learned counsel relies on the judgment of State of W. B. v. Mohammad Khalid (AIR 1995 Supreme Court 785). He submits that, in any event, the two proceedings operated in different fields and therefore, the writ petition deserves to be dismissed. In support of his submission, learned counsel relies on Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia ( 2005 (7) SCC 764 ): AIR 2005 SC 4217 . (11). Mr. Ranjan Roy, learned counsel appearing for the CBI submits that exoneration in departmental enquiry ipso facto cannot lead to a bar in criminal proceedings. In this regard he relies on Superintendent of Police (CBI) v. Deepak Chowdhary. Ltd., Haldia ( 2005 (7) SCC 764 ): AIR 2005 SC 4217 . (11). Mr. Ranjan Roy, learned counsel appearing for the CBI submits that exoneration in departmental enquiry ipso facto cannot lead to a bar in criminal proceedings. In this regard he relies on Superintendent of Police (CBI) v. Deepak Chowdhary. (AIR 1996 Supreme Court 186): 1996 Cri LJ 405 and State through SPE and CBI, A. P. v. M. Krishna Mohan (AIR 2008 Supreme Court 368). (12). We have considered the submissions made by learned counsel for the parties. It appears that the learned single Judge has examined the entire issue threadbare. (13). The Supreme Court in P. S. Rajyas case (supra) was considering the question as to whether the State was justified in pursuing the prosecution against the appellant under Section 5(2) read with section 5(1) (e) of the Prevention of Corruption Act, 1947, notwithstanding the fact that On an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission. It was in this factual backdrop that the Supreme Court, following the ratio of law laid down in the case of State of Haryana v. Bhajan Lal reported in 1992 Suppl. (1) SCC 335 : (1992 Cri LJ 527) allowed the appeal on the peculiar facts of that case. This judgment, however, has been sought to be, distinguished in the latter judgment of the Supreme Court in State through SPE and CBI, A. P. v. M. Krishna Mohan and Anr. (supra) which we shall advert to, presently. (14). In Mahendra Lal Das v. State of Bihar and Ors. (supra) the Supreme Court took into consideration the fact that the authorities of the respondent State were themselves not satisfied about the merits of the case and were convinced that despite granting of sanction, the trial would be a mere formality and an exercise in futility. The Supreme Court, in that case, had also held that the prosecution had miserably failed to explain the delay of more than 13 years in granting the sanction for prosecution of the appellant-accused of possessing disproportionate wealth of about Rs. 50,600/-. The Supreme Court, in that case, had also held that the prosecution had miserably failed to explain the delay of more than 13 years in granting the sanction for prosecution of the appellant-accused of possessing disproportionate wealth of about Rs. 50,600/-. In such peculiar facts and circumstances of that case, the Supreme Court felt inclined to quash the proceedings against the appellant as permitting further prosecution would be a travesty of justice and a mere ritual or formality so far as the prosecution agency was concerned and unnecessary burden as regards the Courts. (15). In the State of West Bengal and Anr. v. Mohammed Khalid and Ors. (supra), cited by the learned counsel for CIL, the Supreme Court has clearly held that taking of cognizance by a designated Court cannot be interfered with under Article 226 of the Constitution of India by analyzing materials on record, and the High Court had clearly exceeded its powers under Article 226 in quashing the orders of sanction. We are of the view that this judgment is wholly applicable in the facts of the instant case, as narrated hereinbefore. (16). In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and Ors. (supra), cited by the learned counsel for CIL, the Supreme Court was considering the question of validity of clause 20(vi) of the certified Standing Orders of the Indian Oil Corporation Ltd., being arbitrary and against the principles of natural justice. The appellant therein had obtained an acquittal from a Criminal Court, in respect of a complaint filed against him under Sections 147, 149. 341, 323 and 506 of the Penal Code, after he was dismissed from service by the General Manager of Indian Oil Corporation for assaulting the Chief Medical Officer of the Refinery Hospital at Haldia. The Supreme Court, in that case, went on to observe, inter alia, that acquittal by a Criminal Court does not debar an employer from exercising power in accordance with the Rules and Regulations in force and the proceedings, criminal and departmental, are entirely different and they operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent depart- mentally and to impose penalty in accordance with the service rules. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent depart- mentally and to impose penalty in accordance with the service rules. This decision is, therefore, squarely applicable in the facts of the instant case. (17). We also find merit in the submission made by Mr. Ranjan Roy, learned counsel for the C. B. I. In Superintendent of Police (C. B. I.) v. Deepak Chowdhary and Ors. (supra) the Supreme Court has specifically observed that the grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a Court of law. It was further observed by the Supreme Court that what was material at that time was that the necessary facts collected during investigation constituting the offence had to be placed before the sanctioning authority and the said authority had to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being an administrative act, the need to provide an opportunity of Rearing the accused before according sanction does not arise. In this judgment the Supreme Court has clearly held that departmental exoneration by the disciplinary authority was not relevant. What was necessary and material was whether the facts collected during investigation would constitute the offence for which the sanction had been sought for. (18). The other judgment relied on by Mr. Ranjan Dey in State through SPE and CBI, A. P. v. M. Krishna Mohan and Anr. (supra) clearly distinguishes the earlier judgment of the Supreme Court in the case of P. S. Rajya v. State of Bihar reported in (1996) 9 SCC 1 . The Supreme Court upon distinguishing the judgment proceeded to observe that the earlier decision in P. S. Rajyas case cannot be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial. (19). Upon a conspectus of the judgments referred above, we are of the view that the law laid by the Supreme Court is well settled. Criminal and departmental proceedings are entirely different from each other and they operate in different fields and have different objectives. (19). Upon a conspectus of the judgments referred above, we are of the view that the law laid by the Supreme Court is well settled. Criminal and departmental proceedings are entirely different from each other and they operate in different fields and have different objectives. Acquittal or exoneration from one such proceeding does not ipso facto lead to either the delinquent or the accused (as the case may be) being absolved of his liability to face charges in the other proceeding; be it criminal or departmental. (20). For reasons stated above, we are not inclined to interfere with the judgment passed by the learned single Judge and the appeal is therefore, dismissed. Appeal dismissed.