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2010 DIGILAW 613 (JK)

Mohd. Yousuf Bhat v. State Of J&K

2010-12-11

Hasnain Massodi

body2010
1. Short controversy, involved in the present petition, revolves around competence of the sanctioning authority under Section 6, J&K Prevention of Corruption Act, Samvat 2006 (1949 AD) to review its decision and grant sanction to prosecution after it refuses to accord such sanction. The controversy arises in the following background:- The petitioner working as District Social Welfare Officer, Srinagar, during the period 1998-1999 allegedly entered into a criminal conspiracy with Shri Muzaffar Iqbal, the then Deputy Director, and Shri Masood-ul-Hassan the then Assistant Director (Adm), Social Welfare Department, Kashmir (now retired) to illegally recruit /employ in Government service his two brothers S/Shri Gulzar Ahmad Bhat and Nazir Ahmad Bhat. It is alleged that the petitioner in furtherance of the conspiracy so hatched, got his brother Shri Gulzar Ahmad Bhat appointed vide order No.SWK/61 of 1998 dated 1.6.1998 as Junior Assistant in the grade of Rs.3050-4590 against available vacancy of Junior Assistant in Tehsil Welfare Office, Pampore and his another brother Shri Nazir Ahmad Bhat vide Government Order No.SWK/55 of 1999 dated 1.7.1999 as Instructor in the grade of Rs.3050-4590 for a period of 89 days. Both the appointment orders are alleged to have been made by Shri Muzaffar Iqbal the then Deputy Director, Social Welfare Department, Kashmir, after cases for the appointment were processed by Shri Masood-ul-Hassan. The petitioner and his co-conspirators, by acting in the aforesaid manner, are alleged to have conferred undue benefit on the appointees and committed criminal misconduct within the meaning of section 5(1)(d) J&K Prevention of Corruption Act Svt 2006, rendering themselves liable for punishment prescribed under section 5(2) of the Act. The occurrence led to registration of case FIR No.41 of 2003 at P/S Vigilance Organization Kashmir (VOK). The investigation was concluded as proved by the investigating agency and the case file submitted to the competent authority for accord of sanction under sanction 6, Prevention of Corruption Act to the prosecution of petitioner and one of his alleged co-conspirators. The other accomplice of the petitioner, having retired on superannuation by the time investigation was concluded, no sanction was required for his prosecution. 2. It appears that the case for grant of sanction to the prosecution of the petitioner was examined by the Law Department and "element of corruption or dishonesty" found missing by the Department. The other accomplice of the petitioner, having retired on superannuation by the time investigation was concluded, no sanction was required for his prosecution. 2. It appears that the case for grant of sanction to the prosecution of the petitioner was examined by the Law Department and "element of corruption or dishonesty" found missing by the Department. The competent authority, having regard, inter-alia, to the opinion of Law Department instead of prosecution, directed departmental enquiry in the matter. Under Secretary to Government, General Administration Department (Vig), accordingly, informed the Commissioner Vigilance that the competent authority on consideration of the matter had decided to order a departmental enquiry instead of according sanction to the prosecution of the petitioner and that a departmental enquiry was proposed to be held by Principal Secretary to Government, ARI, Trainings Department. Under Secretary to Government, General Administration Department (Vig), also forwarded a copy to the Inquiry Officer (Principal Secretary to Government, ARI, Trainings Department) for necessary action. 3. The Inquiry officer (Commissioner/Secretary to Government, ARI & Trainings Department) on 25th February 2009 vide No.PS/CS(Rev)/08/02-1, asked petitioner and alleged co-conspirator -- Shri Muzaffar Iqbal, to appear before the Inquiry Officer and show cause why action warranted under rules may not be taken against them for their omissions and commission as had surfaced in the investigation of case -- FIR No. 41/2003 P/S VOK. The Inquiry Officer concluded the inquiry and submitted the report to the competent authority. The matter was examined by the Law Department afresh on 14th February 2008 and the stand reiterated that the Departmental action was to be resorted to. The Law Department again examined the matter on 16.6.2009 and the Department after underscoring the findings returned by the Inquiry Officer that conduct of the petitioner and other alleged co-conspirator had not been upto mark, opined that the case was not fit for scrutiny by the Criminal Court. The competent authority nonetheless vide Government Order No. 44-GAD(Vig) of 2009 dated 07.09.2009, accorded sanction for prosecution of petitioner for commission of offence punishable under section 5(1)(d) read with 5(2) JK PC Act, 2006 Svt and section 120(B) RPC. 4. The competent authority nonetheless vide Government Order No. 44-GAD(Vig) of 2009 dated 07.09.2009, accorded sanction for prosecution of petitioner for commission of offence punishable under section 5(1)(d) read with 5(2) JK PC Act, 2006 Svt and section 120(B) RPC. 4. The Government Order, according sanction to the prosecution of petitioner, is challenged primarily on the ground that the competent authority, once having taken decision in the matter and decided not to accord sanction to the prosecution of petitioner, could not review its earlier decision and grant sanction for prosecution of petitioner. The petitioner is also at pains to insist that the petitioner had not indulged in any misconduct and that the beneficiaries of the alleged omission and commissions attributed to the petitioner and co-conspirators, independent of their relationship with the petitioner, had like other unemployed youth of the State right to be considered for appointment in government service and were appointed on adhoc basis like other aspirants for government jobs. It is insisted that the respondents, after thousands of such unemployed youth were employed in the manner the brothers of petitioner were employed/recruited, regularized their services and that no illegal benefit was conferred on the so-called beneficiaries. 5. The petition is opposed on the grounds that the petitioner does not show any cause of action inasmuch as the competent authority, after due application of mind to the facts of the case and on going through outcome of investigation conducted by Vigilance Organization, accorded sanction to the prosecution of petitioner. The competent authority is said to have passed the impugned order in consultation with Law Department and also on going through the report submitted by the Inquiry Officer. It is insisted that all issues concerning impugned order are to be raised before Trial Court and not in a writ petition before this Court. 6. Heard and considered. 7. Section 6, J&K Prevention of Corruption Act 2006, Svt, embodies a safeguard for public servants against frivolous prosecution and is aimed at protecting public servants from unnecessary harassment, to which they may be exposed in the event unwarranted or inexpedient prosecution, is contemplated against them. In the said background grant of sanction for prosecution is not an idle formality but an important act to be performed with all seriousness. In the said background grant of sanction for prosecution is not an idle formality but an important act to be performed with all seriousness. Sanctioning authority, while according consideration to grant of sanction, exercises statutory jurisdiction and once it takes a decision, it is not stripped of the power to review such decision. There, however, must be some fresh/ additional material before the sanctioning authority, upon which it feels persuaded to give a second look to the matter and depart from its earlier decision. It follows that if the sanctioning authority at the particular point of time on consideration of the material before it is of the opinion that grant of sanction for prosecution is not warranted, it nonetheless, may at a subsequent stage, in view of the additional material placed before it, review its earlier order and grant sanction for prosecution. Change of guard in political or administrative set up, however, by itself must not prompt review of an earlier order, refusing sanction unless, of course, there is any fresh material placed before the sanctioning authority to call for such review. The law on the subject finds expression in State of Punjab and another v. Mohammed Iqbal Bhatti, (2010, SC, Cri.LJ. 1436), wherein it has been held that reconsideration of the order, refusing sanction to the prosecution of a public servant without any fresh material warranting such recommendation, is improper. 8. Having said so, let us shift attention to the case in hand. The case set up by the petitioner is that as the sanctioning authority on going through the material collected during investigation, placed before it and on applying its mind to the facts and events set out in the said Material, refused to grant sanction as conveyed by Under Secretary to Government, General Administration (Vigilance), to the Commissioner of Vigilance vide communication dated 30.07.2007, the sanctioning authority lacked power to accord sanction to the prosecution of petitioner vide Government Order No.44-GAD (Vig) of 2009 dated 07.09.2009 and that the impugned order, on said ground was, liable to be quashed. The controversy emerging from the pleadings crystallizes into following two issues:- (i) Whether sanctioning authority on perusal and consideration of material collected during investigation of case -- FIR No. 41/2003 P/S VOK, refused to accord sanction to the prosecution of petitioner and one of his co-conspirators? The controversy emerging from the pleadings crystallizes into following two issues:- (i) Whether sanctioning authority on perusal and consideration of material collected during investigation of case -- FIR No. 41/2003 P/S VOK, refused to accord sanction to the prosecution of petitioner and one of his co-conspirators? (ii) Whether the sanctioning authority had before it any material in addition to material already gone through by the sanctioning authority to review its earlier decision refusing sanction and grant sanction to prosecution of petitioner? 9. In case, sanctioning authority is held not to have declined sanction to prosecution of petitioner on or Immediately before 30th July 2007, the fate of present petition is sealed as the order No.44-GAD (Vig) of 2009 dated 07.09.2009, impugned herein, cannot be labeled as order, amounting to review of the earlier order. 10. A careful reading of communication dated 30.07.2007 addressed by Under Secretary to Government, General Administration Department (Vigilance) to Commissioner of Vigilance and endorsed to Principal Secretary to Government, ARI, Trainings Department, reveals that the sanctioning authority declined sanction to the prosecution of petitioner and instead decided to order Departmental inquiry and opt for departmental action against the petitioner. The words and expressions in para 2 of the communication, assume importance and may be noticed: "The case has been considered by the competent authority and it has been decided that instead of according sanction to the prosecution of the officers an enquiry may be conducted by the Principal Secretary ARI in the whole matter as there is no evidence that money has changed hands. The Principal Secretary to Government, ARI, Trainings is, therefore, requested kindly to conduct the above proposed enquiry under an intimation to this department. Records, if any, required can be obtained from the State Vigilance Organisation." 11. It is thus clear that the sanctioning authority refused sanction to the prosecution of petitioner and his co-conspirator. It is pertinent to point out that the respondents in their reply have not disowned communication No.GAD(Vig)78-SP/2006 dated 30.07.2007 or denied that the sanctioning authority took the decision as reflected in the communication. A feeble attempt is, however, made to insist that the sanctioning authority, before according sanction, decided to get the matter inquired by a Senior Officer in the Government and that the decision to grant sanction was taken after the inquiry report was received. The argument is specious and does not merit consideration. A feeble attempt is, however, made to insist that the sanctioning authority, before according sanction, decided to get the matter inquired by a Senior Officer in the Government and that the decision to grant sanction was taken after the inquiry report was received. The argument is specious and does not merit consideration. Had it been the intention of the sanctioning authority that the matter must be further examined before it was considered for according sanction to the prosecution of petitioner there was nothing to prevent the sanctioning authority from making such an observation and directing that before grant of sanction was accorded, an inquiry would be advisable. The sanctioning authority, as is evident from the communication dated 30.07.2007, did not exercise such option but expressly directed that "Instead of according sanction to the prosecution" an inquiry may be conducted. The answer to Issue No.1 is thus in affirmative. The sanctioning authority did decline sanction to the prosecution of petitioner and his alleged co-conspirator as conveyed vide communication No.GAD(Vig)78-SP/2006 dated 30.07.2007. 12. It needs no emphasis that to see whether any material, in addition to the material that was already before the sanctioning authority when the sanction was refused, was placed before the sanctioning authority at the time of grant of sanction to the prosecution of petitioner, one has to fall back upon the recitals of Government Order NO.44-GAD(Vig) of 2009 dated 07.09.2009 as the order summarises the material that was considered by the sanctioning authority at the time of according sanction to the prosecution of petitioner vide aforesaid Government Order. Para 10 of the impugned order details the material that was before the competent authority and may be reproduced hereunder:- "10. Whereas, the Government after considering the records and evidence collected in the case by the investigating agency and applying its mind to the facts and circumstances of the case is satisfied that prima facie case for commission of offences punishable u/s 5(l)(d) r/w sec 5(2) JK PC Act, 2006 and sec 120-B RPC is established against the accused public servants for which they should be prosecuted." 13. It needs to be pointed out that same material, that finds mention in para 10 of the impugned order, was before the sanctioning authority when the sanctioning authority decided not to grant sanction to the prosecution of petitioner. 14. It needs to be pointed out that same material, that finds mention in para 10 of the impugned order, was before the sanctioning authority when the sanctioning authority decided not to grant sanction to the prosecution of petitioner. 14. It is evident that the sanctioning authority, after interval of about two years, had no additional material before it as would have persuaded it to review its earlier decision reflected in communication dated 30.07.2007 and grant sanction to the prosecution of petitioner vide Government Order No.44-GAD (Vig) of 2009 dated 07.09.2009. The respondents, in their reply, have not made mention of any additional material, having been placed before the sanctioning authority at the time earlier order refusing sanction, was reviewed and sanction accorded to the prosecution of petitioner. 15. The observations of Law Department reflected in notes put up by Assistant Law Remembrancer on 14th February 2008 and 16th June 2008, after the sanction to the prosecution of petitioner was refused by the sanctioning authority, if at all treated as a material that came into existence after sanction was declined, reiterated the earlier stand that sanction to the prosecution of petitioner was not warranted. Similarly, the report of the Inquiry officer did not fasten the petitioner with any criminal liability and instead recommended a lenient view. In the circumstances, even if, aforementioned material is taken as additional material, it did not go against earlier decision. 16. It is thus clear that all that the sanctioning authority considered at the time of sanctioning prosecution of petitioner was the material collected during investigation, that, it is to pertinent to point out, was gone through by the sanctioning authority while declining sanction on 30th July 2007 or immediately there before. 17. The above discussion leads to an irresistible conclusion, that there was no fresh/additional material before the sanctioning authority to persuade it to review its earlier decision and accord sanction to prosecution of petitioner. The order impugned thus depicts total non-application of mind on the part of sanctioning authority and is not in conformity with mandate of Section 6, J&K Prevention of Corruption Act 2006 Svt. The order impugned thus depicts total non-application of mind on the part of sanctioning authority and is not in conformity with mandate of Section 6, J&K Prevention of Corruption Act 2006 Svt. It may be stated at the cost of repetition that the sanctioning authority while exercising power with which it is clothed under section 6 J&K Prevention of Corruption Act 2006 Svt performs a solemn act and has been said to be placed in a position of a sentinel at the door of criminal courts in order that no malicious prosecution may pass the corridors of the court of justice. The sanctioning authority while exercising the power, is to be alive to the fact that the criminal prosecution has potential of putting in peril dignity, standing, reputation and credibility of not only the public servant but also his family members, and as has been said "if the dignity or honour vanishes what remains of life", and that the criminal prosecution is to curtail, though not in big measure, right to life and liberty of public servant, guaranteed under Article 21, Constitution of India. Sanction accorded for prosecution of public servant in violation of mandate of spirit of Section 6 J&K Prevention of Corruption Act 2006 Svt, is thus untenable and liable to be quashed. 18. For the reasons discussed above, the petition is allowed and Government Order No.44-GAD (Vig) of 2009 dated 07.09.2009, whereby sanction to the prosecution of petitioner has been accorded, is quashed. 19. Needles to mention that the outcome of present petition shall be sit in the way of the sanctioning authority to review its earlier order, declining sanction on the basis of fresh material, if any, placed before it. Disposed of with connected CMP(s).