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Madhya Pradesh High Court · body

2022 DIGILAW 943 (MP)

Sanjeev Tomar v. State of M. P.

2022-07-19

ARUN KUMAR SHARMA, SHEEL NAGU

body2022
ORDER 1. The petitioner who holds the post of Assistant Manager in the office of respondent No.2 Madhya Pradesh Warehousing and Logistic Corporation (for short “Corporation”) is before this Court in this petition filed under Article 226 of the Constitution praying for following reliefs: “(i) To issue appropriate writ, orders, direction in the nature of certiorari for quashing the impugned suspension order dated 19.2.2016 (Annexure P/1). (ii) To issue appropriate writ, orders, direction in the nature of certiorari for quashing the impugned sanction for prosecutions passed on 2.9.2020 (Annexure P/4). (iii) To issue appropriate writ, orders, direction in the nature of certiorari for quashing the impugned communication order issued on 2.9.2020 (Annexure P/5). (iv) To issue appropriate writ, orders, direction in the nature of certiorari for quashing the impugned suspension order dated 24.11.2020 (Annexure P/6). (v) To direct the respondent No.2 to make payment of entire salary and allowances for the period from 19.2.2016 to 29.05.2019 and also for the period from 24.11.2020 to the date of interim order passed by this Hon’ble Court. (vi) The cost of the petition also be awarded to the petitioner. (viii) Any other relief which this Hon’ble Court may deem just and proper in the fact and circumstances of the case may also be made.” 2. The challenge is essentially laid to the order of suspension dated 24.11.2020 (Annexure P/6) and also to the order of grant of sanction for prosecuting the petitioner dated 2.9.2020 (Annexure P/4) for offences punishable u/S 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 (for brevity “PC Act”). Pertinently, the order of grant of sanction has been passed by M.P. Warehousing & Logistics Corporation, Bhopal. 3. The facts of the case reveal that petitioner was placed under suspension by order dated 19.2.2016 on the ground of filing of charge-sheet in Special Case No.09/2016 on 11.2.2016 for offences punishable u/S 7, 13(1)(d) and 13(2) of the PC Act pursuant to Crime No.440/2015 registered at Special Police Establishment, Bhopal. The trial Court while conducting trial under the PC Act by order dated 3.7.2018 quashed the order of grant of sanction for prosecution on the ground that the same has been granted by incompetent authority i.e. the Managing Director of the respondent Corporation and not by the Corporation. The trial Court while conducting trial under the PC Act by order dated 3.7.2018 quashed the order of grant of sanction for prosecution on the ground that the same has been granted by incompetent authority i.e. the Managing Director of the respondent Corporation and not by the Corporation. The trial Court passed the order on 3rd July, 2018 (Annexure P/2) which was followed by revocation of the suspension by order dated 29.5.2019 whereafter the competent authority i.e. the respondent Corporation passed the order of grant of sanction for prosecution on 2.9.2020 vide Annexure P/4 which thereafter led to passing of the impugned order of suspension dated 24.11.2020. 4. Various grounds have been raised in this petition and learned senior counsel Shri Hemant Shrivastava alongwith Shri Bramhanand Pandey, Advocate has valiantly tried to attack the impugned order of suspension as well as of grant of sanction for prosecution by contending that no opportunity of hearing was afforded to the petitioner before grant of sanction for prosecution which amounts to violation of provision of section 19(1)(c) of the PC Act and that the FIR could not have been lodged without prior permission of the disciplinary authority in terms of the amended section 17(A) of the PC Act. 5. Learned senior counsel Shri Shrivastava when confronted by this Court with the recent decision of apex Court dated 16th December, 2021 passed in Criminal Appeal No.1647/2021 in the case of State of Rajasthan v. Tejhmal Choudhary where it was held that all FIRs registered prior to the amendment in the PC Act (w.e.f. 26.7.2018) would be governed by the unamended Act, gave up the said ground since the facts of the case reveal that the FIR against petitioner was lodged in 2015 much prior to the amendment to the PC Act which brought into effect the provision of section 17A of the PC Act. 6. As regards the ground of grant of prior opportunity of being heard before grant of sanction for prosecution is concerned, this Court has closely scrutinized the phraseology employed and the intent behind amended section 19 of the PC Act. 6. As regards the ground of grant of prior opportunity of being heard before grant of sanction for prosecution is concerned, this Court has closely scrutinized the phraseology employed and the intent behind amended section 19 of the PC Act. It is obvious by a mere reading of the said provision section 19 that prior opportunity of being heard before grant of sanction for prosecution is available to the accused in cases where initiation is by way of a complaint u/S 200 of Cr.P.C. and not when the initiation is by the police by lodging FIR. The reason is not far to see. When Police, which is part and parcel of the State, files charge-sheet it does so after conduction of detailed investigation into the veracity of the allegation though to a prima facie extent. The Police being a limb of the State is presumed to act in a fair and impartial manner and therefore a charge-sheet filed by the police is presumed to be filed after prima facie verification of the veracity of allegations. As such, the authenticity and trustworthiness of charge-sheet filed by the police stands on comparatively a higher pedestal than a complaint by an individual u/S 200 of Cr.P.C. 6.1 On the other hand, when an individual citizen/complainant files a complaint u/S 200 Cr.P.C. alleging the commission of an offence punishable under the PC Act and if the allegations are found to be prima facie true then before the competent authority grants sanction for prosecuting the public servant who is alleged to be an accused, the amended PC Act extends protection to the accused by extending prior opportunity of being heard before sanction for prosecution is granted. This prior opportunity of being heard to the accused/public servant is essential because when a private person/complainant alleges offence under the PC Act, the lurking presence of element of personal grudge or false/malacious prosecution in the allegation by an individual cannot be ruled out. Thus, to eliminate any possibility of false and malicious allegations made by the individual complainant against a public servant from maturing into an order of grant of sanction, the public servant deserves to be heard so that the sanctioning authority before grant of sanction has the benefit of the stand of the government servant/accused. Thus, to eliminate any possibility of false and malicious allegations made by the individual complainant against a public servant from maturing into an order of grant of sanction, the public servant deserves to be heard so that the sanctioning authority before grant of sanction has the benefit of the stand of the government servant/accused. This is in line with the object of amended section 19 of the PC Act which is to afford further protection against false and malicious prosecution to government servants who act in due discharge of their duties. Thus, the opportunity afforded under the provision of section 19 to the accused of being heard is merely to achieve this object and to ensure that the protective spirit behind section 19 is kept alive. 7. In view of above discussion, grant of prior opportunity of being heard before passing of order of sanction is not applicable to the case of the petitioner since it arises out of an FIR lodged by the police and not out of a complaint u/S 200 Cr.P.C. 8. Learned senior counsel Shri Shrivastava has at this juncture submitted that petitioner is suffering prolonged suspension which is continuing since 24th of November, 2020 and there is no hope of the trial under the PC Act being completed in the near future. Learned senior counsel for the petitioner has also submitted that no disciplinary proceedings arising out of the same incident have been initiated till date against the petitioner. In regard to the grievance of prolonged suspension, the petitioner has relied upon the decision of Supreme Court in the case of State of T.N. v. Promod Kumar, (2018) 17 SCC 677 . The relevant extract of the same is reproduced hereinbelow: “24. The first respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr P. Chidambaram, learned Senior Counsel appearing for the first respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first respondent under suspension pending criminal trial. Mr P. Chidambaram, learned Senior Counsel appearing for the first respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first respondent are serious in nature. However, the point is whether the continued suspension of the first respondent for a prolonged period is justified. 25. The first respondent has been under suspension for more than six years. While releasing the first respondent on bail, liberty was given to the investigating agency to approach the Court in case he indulged in tampering with the evidence. Admittedly, no complaint is made by CBI in that regard. Even now the appellant has no case that there is any specific instance of any attempt by the first respondent to tamper with evidence. 27. This Court in Ajay Kumar Choudhary v. Union of India [Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 : (2015) 2 SCC (L&S) 455] has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the appellant State has the liberty to appoint the first respondent in a non-sensitive post.” 9. In view of the law laid down by the apex Court, this petition while being dismissed as regards challenge to the order of grant of sanction for prosecution and also as regards the order of suspension, is disposed of with a direction to the petitioner to prefer a fresh representation to the competent authority i.e. the respondent Corporation which if made within a period of 30 days along with copy of this order will be considered and decided by passing a speaking order in regard to the grievance of prolonged suspension and revision of the subsistence allowance, within a period of 30 days thereafter. While taking a decision, the competent authority shall take into account the circulars of the State Government and the law laid down by the apex Court. While taking a decision, the competent authority shall take into account the circulars of the State Government and the law laid down by the apex Court. 10. Accordingly, present petition stands disposed of. 11. No cost.