Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 203 (PNJ)

Vijay Kumar Janjua v. State of Punjab

2014-01-24

RAJESH BINDAL

body2014
JUDGMENT Mr. Rajesh Bindal, J.:- The petitioner, who is an IAS Officer, has filed the present petition challenging the order dated 27.4.2010 (Annexure P-6), whereby sanction has been granted for prosecution of the petitioner under the Prevention of Corruption Act, 1988 (for short, ‘the Act’). 2. The petitioner, who appears in person, submitted that he is an officer of the Indian Administrative Service. In terms of Indian Administrative Service (Recruitment) Rules, 1954 (for short, ‘the 1954 Rules’), all the recruitments are to be made by the Central Government. In terms of the All India Services (Discipline and Appeal) Rules, 1969 (for short, ‘the 1969 Rules’), penalty of dismissal, removal or compulsory retirement can be imposed only by an order passed by the Central Government. Section 19(1)(c) of the Act provides that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act allegedly committed by a public servant, except with the prior sanction of the authority competent to remove him from the office. As in the present case, the competent authority to remove the petitioner from service is the Central Government, sanction for prosecution, as granted by the Governor of Punjab, is contrary to law and deserves to be set aside. In support of his arguments, reliance has been placed upon Sanjay Bhatia v. State of Haryana, 2002(4) RCR (Criminal) 761 (P&H) and Sudhakaran v. State of Kerala, 2006(3) AICLR 504 (Ker.). He had further referred to the sanction granted in the cases of other IAS officers serving in the State of Punjab by the Government of India. 3. On the other hand, learned counsel for the State submitted that the petitioner is in service with the State Government since 21.8.1989. On 9.11.2009, he was caught red handed while accepting bribe of Rs. 2,00,000/-. FIR No. 9 dated 9.11.2009 was registered under the Act. On 13.11.2009, he was removed from the office of Director, Industries, Punjab. Section 19(1) (a) of the Act refers to the authority which is competent to remove an employee from the office, which means the posting and not the service. As the State is competent to remove the petitioner from the office, it is competent even to grant sanction. Reliance was placed upon Balakrishnan Ravi Menon v. Union of India, 2007(3) RCR (Criminal) 956. As the State is competent to remove the petitioner from the office, it is competent even to grant sanction. Reliance was placed upon Balakrishnan Ravi Menon v. Union of India, 2007(3) RCR (Criminal) 956. He further submitted that Rule 6 of the 1969 Rules refers to major penalties, one of which is removal from service. Rule 7(1)(b) of the 1969 Rules provides that where an officer is serving with the State, then the State is competent to grant sanction. 4. The stand of Union of India is that in terms of the circular dated 27.10.1999, as only the Central Government can remove an IAS officer from service, it is competent to grant sanction. Removal from office means no longer in service. 5. In response to the contentions raised by learned counsel for the respondents, the petitioner submitted that the issue regarding removal from office and service has been gone into by Hon’ble the Supreme Court in State of Uttarakhand v. Yogendra Nath Arora and another, [2013(3) Law Herald (SC) 1933] : 2013(3) RCR (Criminal) 892 and it has been opined that removal from office means permanent severance of relationship of employer and employee. He further submitted that in terms of Rule 7(1B) of the 1969 Rules, in case there is any dispute about the competence of the authority to grant sanction, namely, whether the Central Government or the State Government, the decision of the Central Government is final to that effect. While referring to Rule 3(1) (b) and (6A) of the 1969 Rules, he submitted that the Central Government has been given super power to deal with the cases of IAS officers. 6. Learned counsel for the State further submitted that the issue regarding seeking opinion of the Central Government would arise only in case the dispute arises. In the present case as the petitioner was serving in the State, it was fully competent to grant sanction for prosecution, as the offence was committed by him while serving in the State. 7. Heard the petitioner in person and counsel for the respondents and perused the paper book. 8. The issue under consideration in the present case is regarding challenge to the sanction for prosecution of the petitioner under Section 19 of the Act, who is an IAS officer serving in the State of Punjab, as granted by the Governor of Punjab. 7. Heard the petitioner in person and counsel for the respondents and perused the paper book. 8. The issue under consideration in the present case is regarding challenge to the sanction for prosecution of the petitioner under Section 19 of the Act, who is an IAS officer serving in the State of Punjab, as granted by the Governor of Punjab. The primary contention raised is regarding competence of the State. 9. To appreciate the contentions raised by both the parties, it would be appropriate to refer to the provisions of Section 19 of the Act, which are reproduced hereunder: “19. Previous sanction necessary for prosecution:- (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. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission, irregularity in, the sanction required under subsection (1), unless in the opinion of that court, a failure of justice has, in fact, been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation:- For the purposes of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.” 10. The interpretation of Section 19 of the Act was under consideration before Hon’ble the Supreme Court in State v. T. Venkatesh Murthy, (2004) 7 SCC 763 , wherein it was opined as under: “7. A combined reading of sub-sections (3) and (4) makes the position clear that notwithstanding anything contained in the Code no finding, sentence and order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under subsection (1), unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. 8. Clause (b) of sub-section (3) is also relevant. 8. Clause (b) of sub-section (3) is also relevant. It shows that no Court shall stay the proceedings under the Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice. 9. Sub-section (4) postulates that in determining under subsection (3) whether the absence of, or any error, omission or irregularity in the sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. 10. Explanation appended to the Section is also of significance. It provides, that for the purpose of Section 19, error includes competency of the authority to grant sanction. 11. The expression “failure of justice” is too pliable or facile an expression, which could be fitted in any situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of Environment, (1977) 1 All ER 813. The criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. [See Shamnssaheb M. Multtani v. State of Karnataka, 2001(1) RCR (Criminal) 617: (2001) 2 SCC 577 ].” 11. In State of M. P. v. Virendra Kumar Tripathi, (2009) 15 SCC 533 as well, a similar issue came up for consideration before Hon’ble the Supreme Court. The relevant part of paragraph 6 thereof is extracted below: “6.......... Further the High Court has failed to consider the effect of Section 19(3) of the Act. The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the opinion of the Court a failure of justice has in fact been occasioned thereby. In the instant case there was not even a whisper or pleading about any failure of justice. In the instant case there was not even a whisper or pleading about any failure of justice. The stage when this failure is to be established yet to be reached since the case is at the stage of framing of charge whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was led. In this connection the decisions of this Court in State v. T. Venkatesh Murthy, 2004 (4) RCR (Criminal) 388: 2004 (3) Apex Criminal 567: [ 2004 (7)SCC 763 ] and in Prakash Singh Badal v. State of Punjab, [2007(1) Law Herald (SC) 218] : 2007 (1) RCR (Criminal) 1: 2007 (1) RAJ 71: [ 2007 (1) SCC 1 ] need to be noted.” 12. In a recent judgment of Hon’ble the Supreme Court in Dinesh Kumar v. Chairman, Airport Authority of India and another, (2011) 4 SCC 402 , while referring to its earlier judgment in Parkash Singh Badal and another v. State of Punjab and others, [2007(1) Law Herald (SC) 218] : (2007) 1 SCC 1 , opined that there is difference between absence of sanction and validity of sanction. The issue regarding absence of sanction can be raised at the inception by the aggrieved person. However, where the sanction order exists, the issue regarding its legality has to be raised only during the course of trial. Relevant paras thereof are extracted below: “10. The provisions contained in Section 19(1), (2), (3) and (4) of the P. C. Act came up for consideration before this Court in Parkash Singh Badal and another. In paras 47 and 48 of the judgment, the court held as follows: “47. The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard. 48. The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. 48. The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.” 11. While drawing a distinction between the absence of sanction and invalidity of the sanction, this court in Parkash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal, this court referred to invalidity of sanction on account of nonapplication of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind- a category carved out by this court in Parkash Singh Badal, the challenge to which can always be raised in the course of trial.” [Emphasis supplied] 13. In the case in hand, it is not in dispute that there is an order, vide which sanction had been granted by the Governor of Punjab for prosecution of the petitioner. The same is sought to be challenged by the petitioner on the ground of competence while referring to the provisions of the Act, the 1954 Rules and the 1969 Rules. Considering the enunciation of law, as referred to above, once there is an order sanctioning prosecution of the petitioner, the issue can only be raised during the course of trial. The same is sought to be challenged by the petitioner on the ground of competence while referring to the provisions of the Act, the 1954 Rules and the 1969 Rules. Considering the enunciation of law, as referred to above, once there is an order sanctioning prosecution of the petitioner, the issue can only be raised during the course of trial. Section 19 (3) of the Act clearly provides that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of Appeal on the ground of absence of, or any error, omission or irregularity in the sanction required, unless in the opinion of the court, a failure of justice has occasioned. The issue regarding failure of justice can be determined only when the trial commences and the evidence is led. 14. Still further, the sanction for prosecution of the petitioner under challenge in the present case is not an order in isolation. It has relation with the FIR registered against the petitioner under the Act. The result of the present petition will be on the trial of the petitioner in the criminal case. There are enough provisions in the criminal law to take care of the grievance of the petitioner. A civil writ petition otherwise also would not be an appropriate remedy. 15. As in the present case the petitioner has an effective remedy of raising the issue before the criminal court, where the trial is pending, in my opinion, the same is not required to be gone into in the present petition. 16. Accordingly, the writ petition is dismissed with liberty to the petitioner to raise the issue during the course of trial.