Rajasthan High Court - Jaipur
Fateh Singh Meena vs Chairmen And M D J V V N Ltd Anr on 27 January, 2014
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.3247/2013 Fateh Singh Meena versus Chairman & Managing Director, Jaipur Vidhyut Vitran Nigam Limited, Jaipur & anr Date of Order : 27th January, 2014 PRESENT HON'BLE MR. JUSTICE MN BHANDARI Mr Ashok Gaur, Sr Adv with Mr Ashwini Jaiman - for petitioner Mr SP Sharma, Sr Adv with Mr SS Shekhawat -for respondents BY THE COURT:
By this writ petition, a challenge is made to the order dated 3.1.2013 whereby prosecution sanction was granted against the petitioner. The order of suspension dated 26.9.2012 has also been challenged.
Learned counsel for petitioner submitted that while petitioner was working on the post of Zonal Chief Engineer, order of suspension was passed on 26.9.2012 at the behest of the Additional Director General, Anti Corruption Bureau (ACB). The order was passed without application of mind and despite favourable preliminary report dated 27.6.2012. The respondents, thereafter, granted prosecution sanction vide order dated 3.1.2013. It was again without application of mind, rather, a draft order prepared by the ACB was endorsed and issued by the respondents.
It is stated that the FIR bearing No. 67/12 dated 2.4.2012 was registered by the ACB for an offence under section 7, 13 (1) (d), 13(2) of the Prevention of Corruption Act, 1988 and section 176 and 384/34 of the Indian Penal Code. One Mr Mohammad Haroon, Technical Assistant was caught red-handed accepting bribe. It was alleged that Mohammad Haroon demanded bribe of Rs.60,000/- from Shokat Ali to recall his order of suspension.
In the preliminary enquiry conducted by the respondents, it was found that Shokat Ali was involved in the act of meter tampering and ignoring excess load consumed by the consumer/ user. He was then placed under suspension by the petitioner. To take revenge, from the petitioner, FIR was lodged against Mohammad Haroon and petitioner though nothing was found against the petitioner in the preliminary enquiry. The respondents thus granted prosecution sanction without taking relevant facts into consideration, rather, by endorsing the draft order sent by the ACB. The impugned order granting prosecution sanction thus vitiates due to non-application of mind.
Learned counsel for petitioner relied on the judgment of the Hon'ble Apex Court in the case of Romesh Lal Jain versus Naginder Singh Rana & ors [(2006) 1 SCC 294] and Mansukhlal Vithaldas Chauhan versus State of Gujarat [(1997) 7 SCC 622]. The Hon'ble Apex Court held that grant or refusal of prosecution sanction should be with application of mind and not based on external pressure.
In the instant case, the draft sent by the ACB was taken verbatim the same for issuance of impugned order of prosecution sanction. The judgment of this court in the case of Manish Mathur versus State of Rajasthan & anr [2013 WLC (Raj) UC 153] has also been relied by learned counsel for petitioner. He has further relied on the judgment of the Hon'ble Supreme Court in the case of State of Karnataka through CBI versus C Nagarajaswami [(2005) 8 SCC 370] and Kishan Lal versus State of Rajasthan & ors [2009(2) RLW 1412 (Raj)].
It is further submitted that even order of suspension was passed on the instructions of ACB. The order aforesaid vitiates as it is not a decision of the respondents but action at the instance of the Bureau which cannot otherwise rule the administration by giving instructions. In view of above, the order of suspension also vitiates and deserves to be set aside. This is more so when the order of suspension was passed at the stage when prosecution sanction was not even granted and otherwise preliminary enquiry was favourable to the petitioner. The order of suspension was passed in the month of September, 2012, whereas, the FIR was lodged in the month of April, 2012 itself.
Learned counsel for the respondents, on the other hand, contested the matter. It is submitted that after the prosecution sanction, charge sheet has already been filed by the ACB followed by an order of cognizance. In view of above, this court should not cause interference in the order of prosecution sanction. If, at all, petitioner is aggrieved by the order, he can challenge it separately with a challenge to the order of cognizance.
Coming to the facts of the case, it is submitted that petitioner is involved in demand and acceptance of bribe. It was to recall the order of suspension of one Shokat Ali. Technical Assisrant Mohammand Haroon was caught, red-handed accepting bribe. The bribe was accepted for the petitioner thus not only prosecution sanction was granted after proper application of mind but order of suspension is also appropriate in the facts and circumstances of the case. It may have been issued at the stage when direction was given by the ACB for the aforesaid but then it does not vitiate on the aforesaid ground alone. The petitioner may not have been caught red-handed but telephone conversation between Mohammad Haroon and the petitioner supports the incidence.
A reference of the circular issued by the Government of Rajasthan has also been given where direction is to suspend the officer, who is trapped or prosecution sanction has been given. The respondents thus acted as per the directions contained in the circular of the Government of Rajasthan dated 7.7.2010. In view of aforesaid, writ petition deserves to be dismissed summarily.
I have considered the submissions of learned counsel for the parties and perused the record.
The petitioner has challenged not only the order of suspension but the order granting prosecution sanction also. The challenge was made at the stage when charge sheet was not filed in pursuance to the prosecution sanction, however, during pendency of the writ petition, charge sheet was filed followed by an order of cognizance by the court concerned. In view of above, the question would be as to whether this court can cause interference in the order of prosecution sanction, at this stage?
Learned counsel for petitioner has placed reliance on the judgment of the Hon'ble Apex Court in the case of State of Karnataka through CBI versus C Nagarajaswami (supra). Therein, it is held that order of prosecution sanction can be challenged even if cognizance of offence is taken and the plea for challenge is taken for the first time before the appellate court. I find that aforesaid judgment was in an appeal in the criminal side and it was not a case where the order of prosecution sanction was challenged simplicitor. In my opinion, after passing of the order of prosecution sanction, charge sheet having been filed followed by order of cognizance, this court should not interfere in the order of prosecution sanction though petitioner has to be given liberty to challenge the said order along with order of cognizance by taking legal recourse in view of the judgment of the Hon'ble Supreme Court as referred to above.
It is, no doubt, true that an order of prosecution sanction should not be passed without application of mind or at the instance of the agency investigating the matter. In the instant case, after registration of the FIR, a fact finding enquiry was conducted by the respondents and nothing adverse was found therein against the petitioner. The respondents were thus under an obligation to consider the aforesaid aspect while passing the order and should not have used verbatim the draft for prosecution sanction order sent by the ACB.
The record where the matter was processed has been submitted by learned counsel for respondents. I do not find discussion therein to draw a conclusion or to show application of mind for passing of the impugned order. The judgments cited by learned counsel for petitioner supports the view. The order of prosecution sanction could have been quashed if the charge sheet and an order for cognizance would not have been passed.
The respondents are expected to draw an order for prosecution sanction at their own. It is invariably seen that as and when a case is registered for offence under the Act of 1988, investigating agency sends a draft for issuance of order of prosecution sanction though, time and again, courts have quashed such orders having been passed without application of mind. The investigating agency should understand their role. They can send the material forming basis for order so that competent authority may apply its mind for grant of prosecution sanction or for its refusal. The investigating agency should not have taken the administration in their hands or to feed the administration for passing a particular order. A difference has to be made between the administration and the investigating agency. The aforesaid aspect is not required to be elaborated in view of the judgments cited by learned counsel for petitioner where the same view has been expressed by the Hon'ble Apex Court and by this court. The reference of the facts and judgment has been given without causing interference in the order of prosecution sanction. It is to make clear that respondents should pass order of prosecution sanction with application of mind and not by endorsing the draft order sent by the ACB. The ACB should also realise its role for the aforesaid purpose so that prosecution sanction orders are not set aside on the ground aforesaid.
The respondents are thus directed to send a copy of this order to the ACB to take note of this aspect and, at the same time, petitioner would be at liberty to challenge the order of prosecution sanction so as the subsequent orders on all available grounds by taking proper legal recourse for it.
The order of suspension dated 26.9.2012 is also under challenge.
The FIR in the present matter was registered in the month of April, 2012, however, order of suspension was not passed immediately thereafter, rather, it was passed when it was commanded by the ACB vide its letter dated 21.9.2012 at annexure-7. The direction to place the petitioner under suspension should not have been given by the ACB. Again, the ACB should understand its limited role of investigation and not to enter into administrative work or to command the respondents/ departments concerned, for suspension. The order of suspension was passed on 26.9.2012 i.e. immediately after receipt of the letter of the ACB dated 21.9.2012. It was at the stage when even the prosecution sanction was not granted and fact finding enquiry was favourable to the petitioner.
Learned counsel for the respondents has referred telephonic conversation between the petitioner and Mohammad Haroon, Technical Assistant to show petitioner's involvement, however, no conversation could be shown from petitioner side. Further comment on the issue may affect the case of either side thus I am not commenting further on the issue more so when criminal case is also pending in the matter.
The respondents have supported their action in reference to the circular issued by the State Government on 7.7.2010. A copy of which was produced during course of arguments. I have gone through the circular and find it to be in reference to the earlier circular dated 10.8.2001. The earlier circular was subject matter of litigation and decision of this court in the case of Prem Prakash Mathur versus State of Rajasthan & ors, SB Civil Writ Petition No. 3971/2004, decided on 20th September, 2005 at Principal Seat, Jodhpur [2006 (1) CDR 291 (Raj)]. Therein, it was held that State Government cannot issue directions for any action which includes order of suspension, rather, it should be with application of mind by the administration. The relevant para of the judgment is quoted hereunder for ready reference -
In the present case there is no allegation against the petitioner that he has in any way delayed the trial of criminal case. The only reason given by the respondents is that the circular dated 10.8.2001 restrains reinstatement of a government servant by revoking his suspension till he gets acquittal from the criminal charges. In my considered opinion the circular dated 10.8.2001 cannot curtail the discretion vested with the appointing authority with regard to placing, continuing or revoking suspension of a government servant. The appointing authority or the authority competent under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 is required to exercise the powers vested with him independently by taking into consideration all the facts, circumstances and the legal position existing.
It is quite surprising that even after the judgment of this court in reference to the circular dated 10.8.2001, the respondents have issued another circular on 7.7.2010 endorsing the earlier circular of the year 2001 in ignorance of the judgment of this court in the case of Prem Prakash (supra).
Even if the circular dated 7.7.2010 is looked into, the order of suspension is directed when a public servant is caught red-handed accepting bribe, which is not the case in hand as the petitioner was not caught red-handed accepting bribe. It is not even the case where order of suspension was passed on grant of prosecution sanction. The order of suspension was passed in the month of September, 2012, whereas, prosecution sanction was granted in the month of January, 2013 i.e. much subsequent to the order of suspension. At the time of suspension, even the charge sheet was not filed, which is the third ground to place a public servant under suspension. For ready reference, circular dated 7.7.2010 is quoted hereunder as it is not part of the record -
???????
???? - ??? ????? ?? ??????? ??????? ??? ?????? ??? ?????? ?? ????? ?? ?????? ??? ???????| ?? ????? ?? ????????? ??????? ?????? 10-8-2001 ?? ???? ??? ??? ????? ?? ?????? ??? ?????? ?? ????? ?? ?????? ??? ??????? ?? ???????? ????? ?? ????? ?????????? ???? ???? ?? ?????? ??? ?????????? ??????? ???? ???? ???|
1. ?? ?? ??? ??? ???? ?????????? ?????? ?????? ?????? ?????? ???? ??? ???? ???? ???????? ???? ???? ?? ???????? ??? ???? ?? ???? ???? ????? ?? ????? ??????? ???? ????|
2. ??????? ????? 1 ??? ?????? ????? (Trap cases) ?? ????? ?????????? ?? ???????? ????? ??????? ??? ??????? ????????? ?????? ???? ?? ??? -??? ???????? ??? ???? ?? ??????? ???? ???? ???????? ????,??? ???????? ??? ???? ?? ????? ??? ?? ??????? ?? ?? ???? ??? ??|
3. ????? ,???? ?????? (Dowry death ),???????? ???? ????? ?????? (grievous Offences) ??? ????? ????? (moral turpitude ) ?? ???????? ??????? ??? ??? ????? ?????? ????? ???????? ??? ???? ????????? ?? ???? ???? ?? ?? ???????? ??? ???? ?? ????? ??????? ???? ???????? ????,??? ???????? ??? ???? ?? ????? ??? ?? ??????? ?? ?? ?? ???? ??? ??| ??????? ???? ?????? ?? ??????? ??? ??? ???? ?? ??????? ??? ?????? ?? ???? ?? ??? ???? ?? ??? ?????? ?? ???? ?? ??? ???????? ??? ???? ?? ???????? ?? ???? ??? ????,?? ??? ??? ????? ?? ?????? ????? ?? ?????? ??? ???? ????? ?? ????? ??? ??????? ?? ????? ???????? ?????? ??? ???????? ?? ???? ?? ????? ???? ??????? ?????| ?? ?????? ??? ?? ?? ?????? ???? ???? ?? ?? ??? ????? ??????? ?????? ???? ??? ???? ?? ??? ????? ?? ???? ???? ?? ?? ??? ??? ???? ?? ????????? ?????? ?? ???? ?? ???? ???? ??????,???? ????? ????? ?? ??? ??????? ??? ???????? ?? ???? ?? ??????? ???? ???? ?? ?? ?? ??| The perusal of the circular gives three stages when a public servant should be placed under suspension. In the instant case, none of those stages came at the time when order of suspension was passed thus the circular does not provide any assistance to the respondents or justify their action for passing order of suspension.
The note sheet where case was processed by the respondents shows a decision to place petitioner under suspension in reference to the letter sent by the ACB thus even the order of suspension was passed on the instructions of the ACB. The respondents are expected to take their action not at the instance of the ACB but at their own level.
In view of above, the order of suspension cannot be allowed to stand, hence, same is set aside, however, treatment to the period of suspension would be given by the respondents on completion of criminal case or the departmental enquiry, if initiated.
The writ petition stands partly allowed. This also disposes of the stay application.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J