Jharkhand High Court
Dr. Kalipada Mohanta Son Of Late Atul ... vs State Of Jharkhand Through Cbi on 15 May, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 1723 of 2016
Dr. Kalipada Mohanta son of Late Atul Chandra Mohanta,
resident of Central University of Jharkhand, Brambe Campus,
P.O.- Brambe, P.S.- Mandar, District- Ranchi
... ... ... Petitioner
-Versus-
State of Jharkhand through CBI
... ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Kaushik Sarkhel, Advocate
For the Opp. Party-CBI : Mr. Rohit Sinha, Advocate
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C.A.V. On 04.02.2020 Pronounced on 15.05.2020
1. Heard Mr. Kaushik Sarkhel, the learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Rohit Sinha, the learned counsel appearing on behalf of the Opposite Party-CBI.
3. After conclusion of hearing of this case on 04.02.2020, a Written Notes of Arguments has been filed on behalf of the petitioner which is kept on record.
4. The petitioner was posted as the Deputy Registrar in Central University of Jharkhand at the relevant point of time. It was submitted that during pendency of the present petition, the petitioner superannuated from the service on 31.10.2016. It is also not in dispute that the Central University of Jharkhand is governed by the Central Universities Act, 2009.
5. This criminal miscellaneous petition arises out of RC 16(A)/2014-R dated 29-12-2014 pending in the court of the learned Special Judge, CBI, Ranchi. The prosecution case, in brief, is that during the year 2010, the petitioner abused his official position and dishonestly and fraudulently did not initiate any action for floating open tender as per General Finance Rules (GFR-2005) of Govt. of India for procurement of 200 Split Air Conditioners alongwith accessories required for the class rooms and for the administrative block of the University. It is further alleged that the petitioner conspired with Kewal Chouhan of M/s Jayant Agencies and managed/collected two fake / 2 bogus quotations in the name of the firms, viz. M/s New Ashok Enterprises and M/s Kamalia Sons and he himself submitted the same in the University. It is further alleged that the petitioner, dishonestly and fraudulently, prepared one comparative statement based on the said two fake/bogus quotations and one quotation of M/s Jayant Agencies, Ranchi. The petitioner, by declaring the firm M/s Jayant Agencies as L-1, obtained administrative approval for placing the purchase order initially for 17 Split Air Conditioners of LG Company to this firm. He also dishonestly obtained the approval for the bulk purchase of Split Air Conditioners for the classrooms at the same rate, whereas as per General Financial Rules (GFR-2005) of Govt. of India, open tender was required to be floated for such high value of purchase. It is further alleged that the petitioner, in conspiracy with M/s Jayant Agencies, Ranchi, issued the purchase order dated 16.03.2010 to it for supply of 17 Split Air Conditioners and another purchaser dated 25.03.2010 for supply of 200 more Split Air Conditioners alongwith accessories. It is further alleged that M/s Jayant Agencies, Ranchi supplied 217 Split Air Conditioners at the exorbitant rate and dishonestly and fraudulently received Rs. 5,55,430/- and Rs. 55,29,400/- from the University and the University was put to a wrongful loss of Rs. 7,92,420/- by accused persons. Thus, it is alleged that the petitioner abused his official position and in conspiracy with co-accused Kewal Chouhan, Partner of M/s Jayant Agencies, Ranchi and others, cheated the Central University of Jharkhand for total amount of Rs. 7,92,420/-, by causing wrongful gain to themselves and corresponding wrongful loss to the Central University of Jharkhand. M/s Jayant Agencies was not even an authorized dealer of LG Company. It is also alleged that the petitioner in criminal conspiracy with Kewal Chouhan of M/s Jayant Agencies, had put up a note to Vice Chancellor on 12.03.2010 falsely claiming therein that he along with OSD (Administration) had surveyed the market on 10.03.2010 and had collected quotations from three firms viz. M/s Kamalia Sons, Ranchi, M/s New Ashok Enterprises, Ranchi and M/s Jayant Agencies, Ranchi. Out of the three quotations collected by petitioner, the quotations of two firms viz. M/s Kamalia Sons and M/s New Ashok Enterprises were found to be fake and forged. It is also alleged that placing of repeat order on M/s Jayant Agencies for purchase of 200 of Split Air Conditioners without resorting to an Open Tender as required under Rule 150 of General Financial 3 Rules, 2005 was itself not permissible as there is no provision in the said Rules for placing repeat order on the same firm.
6. The cognizance of offence under Section 120-B r/w Sections 420, 468 and 471 of IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 was taken in the case vide order dated 05.01.2016. thereafter, the petitioner on 09.02.2016 and 11.04.2016 filed petitions before the learned court below raising the points of legality of the sanction order for prosecution which were rejected by the learned court below vide order dated 04.06.2016 as not maintainable interalia on the ground that the petitioner by that time had not entered his appearance in the case. The petitioner has challenged by the order taking cognizance dated 05.01.2016 as well as the order dated 04.06.2016 in this criminal miscellaneous petition filed under Section 482 of Cr.P.C.
7. During the pendency of the present criminal miscellaneous petition, four Interlocutory Applications have been filed by the petitioner. IA No.4905/2016 has been filed for quashing of order dated 10.06.2016 whereby non-bailable warrant of arrest was issued against the petitioner. IA No.9845/2017 has been filed for quashing the order dated 13.11.2017 refusing to discharge the petitioner interalia observing that it is settled law that if there is no close nexus with the act committed or omitted with their discharge of official duty, the question of requirement of sanction or the same is not granted by competent authority is immaterial and there is sufficient prima facie materials available on record for the purpose of framing charge against the petitioner and others.
IA No.2430/2019 has been filed for quashing the order dated 28.06.2018 whereby the learned court below has rejected the petition filed by the petitioner under Section 19(4) of Prevention of Corruption Act, 1988 in which the petitioner had raised a plea that the Vice Chancellor has no jurisdiction to grant sanction for prosecution of the petition as the appointing authority of the petitioner is the Executive Council.
IA No.7899/2019 has been filed for quashing the order dated 30.01.2018 framing charge under Sections 120B r/w 420,468 and 471 of Indian Penal Code and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner and the co-accused persons.
8. However, during the course of arguments and even in the Written 4 Notes of Arguments, it has been clearly mentioned that the arguments are restricted to I.A. No. 2430/2019 wherein following prayer has been made:
"For quashing the order dated 28.06.2018 passed by Shri A.K. Mishra-I, learned Special Judge, CBI, Ranchi whereby and whereunder a petition filed by the present petitioner under Section 19(4) of the Prevention of Corruption Act, 1988 for passing an appropriate order about the competency of sanctioning authority before stepping into the trial was rejected."
9. In view of the aforesaid submissions made on behalf of the petitioner, the present criminal miscellaneous petition is confined to examining the legality and validity of order dated 28.06.2018 only passed by the learned court below which has been challenged in I.A. No.2430/2019. This Interlocutory Application has already been allowed by a Co-ordinate Bench of this Court vide order dated 26.06.2019.
Submissions on behalf of the petitioner
10. The learned counsel for the petitioner submitted that the point of sanction was agitated by the petitioner at the earliest stage of the proceeding. After framing of charge, he filed a petition under Section 19(4) of Prevention of Corruption Act, 1988 for deciding the issue relating to the sanction for prosecution. In the said petition, the petitioner stated that under Section 25(2) of the Central Universities Act, 2009, the petitioner could only be removed by the appointing authority and the appointing authority with regard to the present petitioner is the Executive Council. The petitioner was appointed as Deputy Registrar in the Central University of Jharkhand on the recommendation of the Selection Committee of the Executive Council.
11. The learned counsel for the petitioner further submitted that the Vice- Chancellor, Central University of Jharkhand, who has granted the sanction for prosecution under Section 19(1)(c) of Prevention of Corruption Act, 1988 claiming himself as Removing Authority of the petitioner, was examined by the learned Special Judge, CBI, Ranchi as enquiry witness on 11.04.2018. The Vice-Chancellor stated that on 17.12.2015, he had granted sanction for prosecution by examining the entire details and evidences submitted by Central Bureau of Investigation. On the question, whether he was the removing authority of the petitioner, he stated that being the Chairman of Executive Council and by powers vested upon him under 5 Section 11(3) of Central Universities Act, 2009, he is the removing authority of the petitioner. He further stated that it is not necessary to mention the aforesaid provision everywhere which is implied when Executive Head gives such a sanction Order. The Vice-Chancellor, Central University of Jharkhand further stated that being the Chairman of Executive Council, he is competent to remove and he is the signing authority also on behalf of the Executive Council.
12. The learned counsel for the petitioner submitted that the learned Special Judge, CBI, Ranchi has rejected the petition filed under Section 19(4) of Prevention of Corruption Act, 1988 on the basis of the affidavit filed by the C.B.I. and the deposition of the Vice-Chancellor holding that under Statute 25 of Central Universities Act 2009, Executive Council is the Competent Authority to remove the petitioner from his post, but the Vice- Chancellor being the Ex-officio Chairman of the Executive Council under Statute 3(1) is the authorized signatory on behalf of the Executive Council and under Section 11(2) of the Act, Vice-Chancellor is the Principal Executive and Academic Officer of the University authorized to exercise general supervision and control over the affairs of the University and under Section 11(3) of the Act, Vice Chancellor is authorized to exercise any power conferred on any authority of the University and to report to such authority at its next meeting the action taken by him on such matter. The learned court below further held that there is no bar to accord sanction in exercise of the aforesaid power being authorized signatory on behalf of the Executive Council even though the authority (Vice-Chancellor) was not competent to remove the petitioner from his post. The learned Special Judge further held that the Statute 25 of the Central Universities Act, 2009 has no applicability as the same is to be followed in process of departmental proceeding against misconduct and on imposition of any penalty to the officers and staff of the University and according of sanction is a normal administrative function of the authority which was approved later on by the Executive Council.
13. The learned counsel for the petitioner submitted that before the learned court below, Central Bureau of Investigation had come up with only one point that the Vice-Chancellor had granted sanction on 17.12.2015 by exercising his powers under Section 11(3) of the Central Universities Act, 6 2009 and the petitioner had to represent to the Executive Council within three months of issuing the Sanction Order.
14. The learned counsel for the petitioner further submitted that exercise of powers under Section 11(3) of the Central Universities Act, 2009 by Vice- Chancellor came into surface for the first time when C.B.I. filed affidavit on 27.03.2018 before the learned court below. It is further submitted that during the hearing of petition filed under Section 19(4) of Prevention of Corruption Act, 1988, the arguments were placed by the petitioner that the Vice- Chancellor is not competent person to remove the petitioner, rather Executive Council was the competent authority to remove the petitioner. After hearing the said argument of the petitioner, the learned court below issued summons to the Vice-Chancellor to appear before the learned Special Court as an enquiry witness. As enquiry witness, the Vice Chancellor for the first time came with a new case stating therein that being the Chairman of the Executive Council, he is competent to remove the petitioner and is a signing authority on behalf of the Executive Council. This very version of the Vice Chancellor is contrary to Statute 6(7)(d) of Central Universities Act, 2009 which provides that it shall be the duty of the Registrar to conduct the official correspondence of the court, the Executive Council and the Academic Council and as such, the finding of the learned Special Court that the Vice-Chancellor is the authorized signatory on behalf of the Executive Council and he is competent to remove the petitioner, is totally erroneous and is fit to be quashed and set aside on this score itself. A. On the point of Applicability of Statute 25 of Central Universities Act, 2009
15. The learned counsel for the petitioner submitted that the learned Special Court, CBI, Ranchi has erred in recording its finding that the Vice- Chancellor being the Ex-officio Chairman of the Executive Council is competent to remove the petitioner as stated by the Vice Chancellor on oath. This finding is also perverse and is contrary to the law laid down by the Hon'ble Supreme Court in the Case of V.C., Banaras Hindu University Vs. Shrikant reported in [(2006) 11 SCC 42] wherein the Hon'ble Supreme Court has interpreted a para materia provision under Statute 31(B) of the Banaras Hindu University Act which also reads para materia to Statute 25(2) of the Central Universities Act, 2009. The Hon'ble Supreme Court in Para-
738 has held that Statute and the Ordinance postulate that an order of termination of services could be passed only by the Executive Council and that too in the event two-third of the members were present and voted in support thereof. Therefore, the Vice-Chancellor had no say in the matter. He was merely a member of the Executive Council. He, thus, could not have initiated any proceeding and imposed any punishment on the respondent.
16. In the said judgment of V.C., BHU Vs. Shrikant (Supra) at Para-41, it has been observed as under: -
".....When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefor, he misdirects himself in law. in such an event, an order of the statutory authority must he held to be vitiated in law. It suffers from an error of law."
In the said judgment, it has also been hold that:-
..."46. As the initial order passed by the Vice-Chancellor was wholly without jurisdiction, the same was a nullity and, thus, the purported approval thereof, by the Executive Council would not cure the defect."
17. The learned counsel for the petitioner submitted that the very judgment of V.C., BHU Vs. Shrikant (Supra) clearly covers the case of the petitioner case on the point that the Executive Council is the only authority to remove the petitioner. This fact further gets fortifies from the law laid down by the Hon'ble Supreme Court in the case of Om Prakash Gupta Swadheen Vs. Union of India &Ors. reported in (1976) 1 SCC 594 wherein the Hon'ble Supreme Court in Para-7 has observed as under:-
"... In the absence of any definition of 'appointing authority' in Central Civil Services (Temporary Service) Rules, 1965 in relation to a temporary government servant not holding a specified post, as the appellant was, we think the term 'appointing authority' must be understood in its plain and natural meaning, namely, the authority which appointed him".
18. In view of the aforesaid law laid down by the Hon'ble Supreme Court in the case of Om Prakash Gupta Swadheen Vs. Union of India &Ors (Supra) and further non obstante clause used at the beginning of Statute 25(2) of the Central Universities Act, 2009 read with Para-9 of the appointment letter placed at Annexure-5 of the main petition, it can safely be said that the Executive Council is the only authority who has appointed the petitioner and in no case or situation, the said power can be vested to any 8 other officer or authority of the University.
19. The finding recorded by the learned Special Judge while rejecting the application under Section 19(4) of Prevention of Corruption Act, 1988 has observed that Statute 25 of the Central Universities Act, 2009 can only be exercised in case of removal through departmental proceeding and not for the purpose of sanction is erroneous and is contrary Statute 25(3) of the Central Universities Act, 2009 which provides that for every case of removal, Statute 25 of the Central Universities Act, 2009 shall be applicable and as such, the same is the removing authority mentioned under Section 19(1) of the Prevention of Corruption Act, 1988.
B. Arguments on the point of exercise of powers under Section 11(3) of the Central Universities Act, 2009
20. The Vice-Chancellor, while being examined as an enquiry witness, came with a new reasoning that he is the Chairman of the Executive Council and the powers are vested upon him under Section 11(3) of the Central Universities Act, 2009 and therefore, he is the removing authority of the petitioner.
21. As per Section 11(3) of the Central Universities Act, 2009, the Vice- Chancellor can exercise its emergency powers only in unforeseeable circumstances. A similar para materia provision of emergency power has been interpreted by a Division Bench of the Hon'ble High Court of Delhi in the Case of Bhupendra Singh Vs. University of Delhi reported in MANU/DE/0012/2001 and has held that the emergency power conferred on the Vice-Chancellor under Clause 11-G(4) of the Statutes can be exercised where an unforeseeable event takes place. It cannot be resorted to where an event is predictable and action by the Executive Council could be taken in time in anticipation of the event. If the Vice-Chancellor did not convene the meeting of the Executive Council which he could have convened for enabling the Executive Council to take action as per the Statutes, he cannot for his own neglect or inaction take recourse to emergency powers and do something which Executive Council was required to do. In the circumstances, the Vice Chancellor cannot be allowed to exercise power under Clause 11-G (4) to meet a self-created emergency. It has also been held that according to Clause 11-G (4) of the Statutes, the Vice-Chancellor was required to report the appointment or nomination of the members of the 9 Governing Body to the Executive Council at its next meeting. In the facts of the case, it was held that the action of the Vice Chancellor was not in accordance with the statutory provisions. The provision requiring the action of the Vice Chancellor taken under the emergency power to be placed before the Executive Council of the University at its next meeting is mandatory in nature. It provides for an inbuilt check against exercise of arbitrary power by the Vice- Chancellor.
22. In reference to aforesaid finding of Hon'ble High Court of Delhi, it is pertinent here to refer that, as apparent from Annexure-III of Supplementary Affidavit, Vice-Chancellor placed for ratification of his sanction for prosecution of the petitioner, as a Removing Authority of the petitioner being the Chairman of Executive Council as well as by claiming himself as authorized signatory on behalf of the Executive Council and not under Section 11(3) of the Central Universities Act, 2009, on 27.11.2017 after lapse of approximately 02 years and after conducting three meetings earlier on 9/10.03.2017, 13.04.2017 and 28.08.2017. On this score also, the sanction conveyed by the Vice-Chancellor dated 17.12.2015 is bad in law and needs to be quashed.
23. A similar view has been taken by the Hon'ble Kerala High Court in the case of Leelakrishnan Vs. The Cochin University of Science & Technology &Ors. reported in MANU/KE/0598/1996 while interpreting a similar emergency provisions contained in Section 11 of the Cochin University of Science & Technology Act. The learned counsel referred to Para-18 of the said judgement which quotes the relevant provision of the Act. He submitted that it has been held that such power under Section 11(11) is to be exercised only when an emergency arises. It is to be exercised sparingly and only when the proposal will not brook the delay till the Syndicate meets and it was held in the facts of the case that it is very difficult to accept that the Vice Chancellor formed the requisite opinion that an emergency had arisen to exercise the power under Section 11(11) and agreed with the decision of the Delhi High Court in M.N. Gupta and Anr. v. University of Delhi MANU/DE/0353/1992: A.I.R. 1992 Delhi 212.
The learned counsel for the petitioner further submitted that as it was held that there was no circumstance existing for the Vice-Chancellor to exercise the power under Section 11(11) and it was illegal and therefore, it 10 was also held in the said judgment that the approval by the Syndicate cannot validate the same.
24. He further submitted that a similar view has been taken by the Hon'ble High Court of Calcutta in the case of Dilip Kumar Sarkar vs University of North Bengal &Ors reported MANU/WB/1501/2011, while interpreting a similar emergency provision contained in Section 10(6) of North Bengal University Act, 1981. He submitted that Section 10 of the Act deals with powers and duties of the Vice-Chancellor and sub-Section (6) of Section 10 vests in such authority certain emergency powers and the provision has been quoted in Para-2 of the said judgement. In the said case, it has been recorded in Para-15 of the judgement that the main question which fell for determination in the case was as to whether there was any necessity on the part of the concerned respondent to indicate in the order impugned that he had applied his mind and formed opinion that there was urgent or emergent situation for exercising his impugned power under Section 10(6) of the Act to justify exercise of such emergency power. While deciding the issue, the Hon'ble Court considered a case relating to exercise of similar power under Section 9(6) of the Calcutta University Act, 1979 in Sakila Begum v. State of West Bengal, wherein it was held that the law is clear on the point that if an authority is required to exercise an emergency power, and if the law postulates that such power is to be exercised upon formation of opinion that such emergency power is to be exercised, then such opinion has to be formed first before exercise of such power. It is submitted that in the same judgment further two questions were also examined in Paras-26 to 32, Firstly, as to whether Court can enquire into the question as to whether such opinion has been formed at all or not.
Secondly, if such opinion is formed, whether the fact that there was application of mind before formation of opinion or not ought to reflect in the order itself or it shall be automatically presumed that an authority vested with the power to exercise such emergency power had applied its mind before exercising such power.
It has been held that in the absence of proper formation of opinion, any action taken in exercise of such extraordinary or emergency power would be invalid. A person aggrieved by any action taken in pursuance of 11 such extraordinary power thus has a right to test if such power has been exercised in the manner prescribed in the statute or not. Thus, the issue of formation of opinion as regards existence of certain state of affairs, in that case being occurrence of an urgent or emergency situation, is a justiciable issue. It has also been held that if a statute requires formation of opinion by certain authority before taking any step, then the authority concerned has to undertake the requisite degree of mental exercise before taking a decision and the fact that such exercise has been undertaken has to be disclosed in the order itself, as the issue as to whether certain state of affairs warranted exercise of emergency power is a justiciable issue. Such opinion must be formed prior to issue of the order, and the order itself ought to record that this exercise has been undertaken as the statute itself requires the authority to apply his mind before formation of opinion that such emergency situation exists for passing the order. It is submitted that in the matter of subsequent ratification of the decision of Vice Chancellor by Executive Council, Hon'ble High Court of Calcutta further ruled that if that order itself is found to be invalid, then the question of further examination of the order for approval or disapproval by the Executive Council cannot arise.
25. He further submitted that a similar view has been taken by the Hon'ble High Court of Allahabad in case of Dr. Sunita Chandra vs Union of India 2019 SCC OnLine 4860 (Allahabad), while interpreting a similar emergency provisions contained in Section 12(3) of Babasaheb Bhimrao Ambedkar University Act, 1994.
26. The learned counsel for the petitioner submitted that in view of the aforesaid judicial pronouncements, in absence of proper formation of opinion and recording the same in the Sanction Order, the Sanction Order vitiates if the Vice-Chancellor claims that he has exercised the powers under Section 11(3) of the Act. Further, non-placement of his decision in the very next meeting his decision, if claimed to be exercised under Section 11(3), also vitiates the Sanction Order.
27. On perusal of Annexure-II of the Supplementary Affidavit, it is also apparent that Vice-Chancellor has not exercised any power under 11(3) of the Act, which was required to be placed for ratification before Executive Council.
28. He further submitted that Vice-Chancellor has granted sanction for 12 prosecution of the petitioner on the false and misleading notion by calming himself as removing authority of the petitioner being Chairman of Executive Council as well as the authorized signatory on behalf of the Executive Council, which is not permissible under the provisions of Central Universities Act, 2009 and such illegality cannot be cured by ratification. On the point of Section 19 of P.C. Act, 1988
29. The learned counsel for the petitioner submitted that the petitioner's case further gets support from the Judgment of the Hon'ble Supreme Court passed in the case of Nanjappa Vs. State of Karnataka reported in (2015) 14 SCC 186, specifically at Paras-23.4 and 23.5 wherein it has been held that a conjoint reading of sub Sections 19(3) & (4) of Prevention of Corruption Act, 1988 leaves no manner of doubt that the said provisions envisage a challenge to the validity of order of sanction or the validity of proceeding including finding, sentence or order passed by the Special Judge in appeal or revision before a Higher Court and not before the Special Court trying the accused. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning prosecution under Section 19(1). Failure of justice is what the appellate or revisional court would in such cases look for. While examining whether any such failure had indeed taken place, the Court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision. He submitted that in the case of Nanjappa (Supra), at Para-24, the Hon'ble Supreme Court has concluded stating as under:
"24. In the case at hand, the special judge not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court. The only error which the trial court, in the opinion of the Hon'ble Supreme Court, committed was that, having held the sanction to be invalid, it 13 should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by the Hon'ble Supreme Court in Baij Nath Prasad Tripathi's Case (AIR 1957 SC
494), the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent court was bound to be invalid and nonest in law."
30. The learned counsel for the petitioner also relied upon the judgement passed by the Hon'ble Supreme Court in the case of Dipak Babaria vs. State of Gujrat (2014) 3 SCC 502 which followed the judgement of Commissioner of Police, Bombay v. Gordhandas Bhanji reported in AIR 1952 SC 16 as well as the case of Mohinder Singh Gill v. Chief Election Commissioner reported in 1978 (1) SCC 405 (para 8) to submit that no new reasoning given by CBI or Central Universities Act, 2009 was required to be considered and on this ground, the Sanction Order issued by the Vice Chancellor is required to be quashed.
31. On the submissions made on behalf of CBI before the learned court below, it is apparent that for the first time the issue of Section 11(3) came into surface on 27.03.2018 when CBI filed Para-wise reply to the petition under Section 19(4) of Prevention of Corruption Act, 1988. Further, the petitioner was never informed about the exercise of power 11(3) of Central Universities Act, 2009 by the Vice-Chancellor. He submitted that on this score, non-intimation of exercise of power under Section 11(3) of the Central Universities Act, 2009 by the Vice Chancellor regarding grant of Sanction to prosecute the petitioner, is violative of Section 11(3) of Central Universities Act, 2009 and on this score also, the Sanction for Prosecution granted by Vice-Chancellor needs to be quashed.
32. He also submitted that alongwith the counter-affidavit filed before the learned court below, the CBI had also enclosed the Extracts of Minutes of 22nd Meeting of Executive Council dated 27.11.2017 which has been annexed as Annexure-II, Supplementary Affidavit. The learned counsel submitted that the Vice Chancellor has not exercised his power under Section 11(3) of Central Universities Act, 2009 and accordingly, his order granting sanction for prosecution is wholly without jurisdiction and consequent approval/ratification by the Executive Council is of no consequence.
14Arguments of the Opposite Party-CBI
33. The learned counsel for the Opposite Party-C.B.I. opposed the prayer of the petitioner and submitted that the impugned order dated 28.06.2018 rejecting the petition filed by the petitioner under Section 19(4) of the Prevention of Corruption Act, 1988 has been rightly passed by the learned court below and the same does not call for any interference by this Court. He further submitted that the charge has already been framed by the learned court below on 30.01.2018. The learned counsel also submitted that the counter-affidavit has been filed by the Central Bureau of Investigation on the point of sanction for prosecution and with particular reference to I.A. No. 2430/2019 challenging the order dated 28.06.2018 and as per the counter- affidavit, it is not in dispute that the administration of Central University of Jharkhand is guided by the Central Universities Act, 2009 and the Vice- Chancellor of the University is legally armed with the administration of the University and the powers and duties of the Vide-Chancellor is enshrined in the Act itself. He submitted that as per the aforesaid Act of 2009, the Vice- Chancellor is the ex-officio chairman of the Executive Council, the Academic Council and the Finance Committees besides other duties and by virtue of his office, he draws intrinsic legal quasi-judicial powers and the entire argument advanced on behalf of the petitioner regarding the competence of the Vice-Chancellor is fit to be rejected. The learned counsel for the opposite party also submitted that the contentions and submissions of the petitioner were taken into consideration by the learned court below while passing the impugned order rejecting the petition under Section 19 (4) of the Prevention of Corruption Act, 1988 after examining the materials on record and the evidence of the sanctioning authority. It transpires from his examination-in-chief that he had carefully read the material evidences placed before him and after going through the same applied his mind before issuing the sanction order for prosecution. It is also submitted that the Vice- Chancellor during his cross-examination before the learned court below has also described the facts and circumstances as the Executive Council was not in session during the relevant period and he had exercised powers vested upon him under Section 11 (3) of the Central Universities Act, 2009 and thereafter, the sanction was ratified in the resolution of the Executive Council. He also submitted that there are very serious allegations against the 15 petitioner. The learned counsel has referred to Para-13 of the counter- affidavit to submit that the judgments cited by the petitioner in support of his case are on different fact situations and they do not apply to the facts and circumstances of this case.
34. The learned counsel for the C.B.I. further submitted that in the judgment dated 25.09.2019 passed by the Hon'ble Supreme Court in Criminal Appeal Nos. 1489-1490 of 2019, a clear distinction has been drawn between absence of sanction and the invalidity of sanction. The learned counsel further submitted that the Hon'ble Supreme Court has clearly held that the invalidity of sanction, if any, is required to be considered at the stage of trial. He submitted that the points raised by the petitioner can only be examined by the learned court below when the sanctioning authority would depose in the trial and bring on record the circumstances under which he exercised his powers under Section 11(3) of Central Universities Act, 2009 and the circumstances and the manner by which it was ultimately placed before and was approved by the Executive Council of the University. These are essentially matters of evidence and trial.
35. The learned counsel for the C.B.I. further submitted that the judgment passed in the case of Dinesh Kumar Vs. Chairman, Airport Authority of India and Another reported in (2012) 1 SCC 532 has been followed in the aforesaid judgement wherein a distinction has been drawn between absence of sanction and invalidity of sanction and it has been held that invalidity of sanction is essentially a matter of trial.
36. Learned counsel for the C.B.I. further submitted that even if, for the sake of arguments, the argument of the petitioner regarding certain irregularities in application of mind while granting sanction is accepted, the petitioner has not been able to make any case regarding failure of justice. In such view of the matter, even assuming everything against the opposite party, the impugned order passed under Section 19(4) of the Prevention of Corruption Act, 1988 may not be quashed in exercise of power under Section 482 of the Code of Criminal Procedure.
Findings of this Court
37. The learned counsel for the petitioner has relied upon Section 11 of the Central Universities Act, 2009 and Statutes 12(2)(iv), 25(2) and 25(3) under the Second Schedule of the Central Universities Act, 2009. The 16 aforesaid provisions of law are quoted herein below for ready reference: -
Section 11.(1) The Vice-Chancellor shall be appointed by the Visitor in such manner as may be prescribed by the Statutes.
(2) The Vice-Chancellor shall be principal executive and academic officer of the University and shall exercise general supervision and control over the affairs of the University and give effect to the decisions of all the authorities of the University.
(3) The Vice-Chancellor may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority at its next meeting the action taken by him on such matter;
Provided that if the authority concerned is of the opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final;
Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub-Section shall have the right to represent against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice- Chancellor.
(4) The Vice-Chancellor, if he is of the opinion that any decision of any authority of the University is beyond the powers of the authority conferred by the provisions of this Act, the Statutes or the Ordinances or that any decision taken is not in the interest of the University, may ask the authority concerned to review its decision within sixty days of such decision and if the authority refuses to review the decision either in whole or in part or no decision is take by it within the said period of sixty days, the matter shall be referred to the Visitor whose decision thereon shall be final.
(5) The Vice-Chancellor shall exercise such other powers and perform such other duties as may be prescribed by the Statutes or the Ordinances.
Statute 12(1) The Executive Council shall have the power of management and administration of the revenues and property of the University and the conduct of all administrative affairs of the University 17 not otherwise provided for.
(2) Subject to the provisions of this Act, the Statutes and the Ordinances, the Executive Council shall, in addition to all other powers vested in it, have the following powers, namely: -
(i) to create teaching ..........
(ii) to appoint such Professors, ..........
(iii) to promote .........
(iv) to create administrative, ministerial and other necessary posts and to define their duties and conditions of their service and to make appointments thereto in the manner prescribed by the Ordinances;
Statute 25 as per Second Schedule of the Central Universities Act, 2009 Statute 25.(1) Where there is an allegation of misconduct against a teacher, a member of the academic staff or other employee of the University, the Vice-Chancellor, in the case of the teacher or a member of the academic staff, and the authority competent to appoint (hereinafter referred to as the appointing authority) in the case of other employee may, by order in writing, place such teacher, member of the academic staff or other employee, as the case may be, under suspension and shall forthwith report to the Executive Council the circumstances in which the order was made:
Provided that the Executive Council may, if it is of the opinion, that the circumstances of the case do not warrant the suspension of the teacher or a member of the academic staff, revoke such order.
25.(2) Notwithstanding anything contained in the terms of the contract of appointment or any other terms and conditions of service of the employees, the Executive Council in respect of teachers and other academic staff, and the appointing authority in respect of other employees, shall have the power to remove a teacher or a member of the academic staff or other employee, as the case may be, on grounds of misconduct.
25(3) Save as aforesaid, the Executive Council, or as the case may be, the appointing authority, shall not be entitled to remove any teacher, member of the academic staff or other employee except for a good cause and after giving three months' notice or on payment of three months' salary in lieu thereof.
1838. Section 11 of the Central Universities Act, 2009 clearly provides in its Sub-section 3 that the Vice-Chancellor may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under the Act and is required to report to such authority at its next meeting the action taken by him on such matter.
Sub-section 3 of Section 11 of the Act, 2009 has two provisos. The first proviso provides that if the authority concerned is of the opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final.
The other proviso is that any person who is aggrieved by the action taken by the Vice-Chancellor under Section 11(3) shall have the right to represent against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice-Chancellor.
On the point of applicability of Statute 25 of the Central Universities Act, 2009 and the point of "appointing authority" of the petitioner
39. So far as the Statute 25(1), (3) to (6) are concerned, they deal with the manner in which an employee is to be removed when there is an allegation of misconduct against the teacher, a member of the academic staff or other employees of the University. In the instant case, the issue involved is relating to power to grant sanction for prosecution and is not relating to any disciplinary proceedings arising out of any misconduct. Thus, this Court is of the considered view that Statute 25(1), (3) to (6) as contained in Second Schedule of the Central Universities Act, 2009 has no applicability in the matter and in the procedure of grant of sanction for prosecution under Section 19 of the prevention of corruption Act, 2009. Accordingly, on this point the finding recorded by the learned court below that Statute 25 has no applicability in the matter of grant of sanction for prosecution as it deals with the matter of disciplinary proceeding arising out of misconduct, does not call for any interference by this Court. So far as the judgment reported in (2006) 11 SCC 42 is concerned, the same relates to the procedure prescribed under the law governing Banaras Hindu University for termination of services and accordingly, the said judgement does not apply to the facts and 19 circumstances of this case.
This Court is of the considered view that Statute 25(2) of the Central Universities Act, 2009 has no applicability in the matter of grant of sanction for prosecution except to the extent that it may throw light as to the authority empowered to remove an employee and there can be no doubt that an authority empowered to remove from the services is the authority who has to grant sanction for prosecution.
40. However, at this stage, in order to find out as to who has the authority to remove the petitioner, the provision under Statute 25(2) assumes importance as the appointing authority has been empowered to remove any employee of the University. There can be no dispute that the power to grant such sanction for prosecution is with the person who has the authority to remove the incumbent from the services. In such circumstances, the crucial point would be as to who is the appointing authority of the petitioner.
41. The public servants are governed by their service conditions as prescribed under Act, statute, ordinances, rules etc.. Further, in view of the law laid down by the Hon'ble Supreme Court reported in (1976) 1 SCC 594 (supra), in absence of any definition of the term "appointing authority", it must be understood in its plain and natural meaning i.e. the authority who appointed him. This Court finds that the Hon'ble Supreme Court has considered the relevant provisions of appointment to a temporary non- specified post and held that temporary service rules did not apply as the person did not hold specified post and in this background, the appointment letter was relied upon to find out the appointing authority.
42. In the present case, the petitioner has relied upon Para-9 of the appointment letter dated 17.03.2010 (Annexure-5) to submit that the Executive Council of the University was the appointing authority of the petitioner and as per Statute 25(2), it is the appointing authority who has the power of removal of the petitioner.
43. Upon perusal of appointment letter dated 17.03.2010 (Annexure-5), this Court finds that the appointment letter was for one year on probation from the date of its acceptance by the petitioner and could be extended to another year. The petitioner has neither mentioned anything about his employment as Deputy Registrar prior to 17.03.2010, nor he has mentioned about the date of acceptance of his appointment pursuant to letter dated 20 17.03.2010 (Annexure-5), nor he has mentioned anything about his nature of employment after expiry of period of one year of probation. This assumes importance as the sanction order indicates that the petitioner was working as Deputy Registrar since May, 2009 and as per Charge-sheet, the alleged offence relates to issuance of purchase orders dated 16.03.2010 and 25.03.2010 and the conspiracy of the alleged offence relates prior to these dates. Moreover, Para-9 of the letter of appointment indicates that the terms of appointment, etc. are subject to the University Act, statutes, ordinances, rules and regulations applicable from time to time. The petitioner has not referred to any provision of the Central Universities Act, 2009 or statute or ordinance to show the service condition governing the post, recruitment and service conditions of Deputy Registrar. In fact, the Central Universities Act, 2009 and the Second Schedule annexed thereto, which have been relied upon by the petitioner, do not mention anything about Deputy Registrar. Section 9 of the Central Universities Act, 2009 provides for the list of officers of the University which includes the Registrar, but there is no mention about Deputy Registrar. However, under Section 9(9), there may be such other officers as may be declared by the Statutes to be the officer of the University. Statute 12(2)(iv) provides that the Executive Council of the University is empowered to create administrative, ministerial and other necessary posts and to define the duties and conditions of their service and to make appointments thereto in the manner prescribed by the ordinances. However, neither any statute, nor any ordinance, nor any provision of law has been shown by the petitioner dealing with appointment and service conditions of Deputy Registrar. The University has also not been made a party in the present criminal miscellaneous petition to satisfy the court on the law governing appointment and service condition of the Deputy Registrar so as to find out as to who is the authority empowered to terminate the services of the petitioner. In view of the aforesaid circumstances, at this stage, on the basis of materials relied upon by the petitioner, it cannot be concluded that there is absence of any definition of 'appointing authority' for the post of Deputy Registrar and the appointment letter dated 17.03.2010 should be considered to find out the appointing authority of the petitioner and then to find out the competent authority to grant sanction for prosecution of the petitioner. The facts and law placed before this Court do not give the 21 complete picture and the appointment letter dated 17.03.2010 (Annexure-5) is yet to be proved before the learned court below. Accordingly, the aforesaid judgment reported in (1976) 1 SCC 594 (supra) does not help the petitioner at this stage.
44. In view of the aforesaid circumstances and considering the present stage of the case, no finding regarding the appointing authority of the petitioner can be given by this Court in exercise of power under Section 482 of Cr.P.C.. Moreover, neither the University is a party in the present criminal miscellaneous petition, nor the sanction order for prosecution of the petitioner has been specifically challenged by the petitioner in the present criminal miscellaneous petition.
The point as to who is the appointing authority of the petitioner and who is the authority competent to grant sanction for prosecution are essentially matters of evidence at the stage of trial which is required to be considered and decided by the learned court below upon appreciating the facts and law regarding appointment of the petitioner as Deputy Registrar of the Central University of Jharkhand.
On the point of exercise of emergency powers under Section 11(3) of the Central Universities Act, 2009 and its ratification by the University
45. There can be no dispute that the matter of sanction for prosecution has to be seriously and promptly attended by the authority concerned. The Vice- Chancellor in his statement before the learned court below tried to justify the grant of sanction for prosecution of the petitioner by stating that he had exercised such power under Section 11(3) of the Central Universities Act, 2009 and admittedly, in the order granting sanction for prosecution, no provision of the said Act has been mentioned. It is not clear from the materials on record, so far placed before the learned court below pursuant to the petition filed under Section 19(4) of Prevention of Corruption Act, 1988, as to the circumstances which compelled the Vice Chancellor of the University to exercise emergency powers for granting sanction for prosecution of the petitioner.
46. The petitioner has not produced before this Court a copy of the petition filed under Section 19(4) of Prevention of Corruption Act, 1988 before the learned court below. However, from the records of this case and from the arguments advanced by the learned counsel for the petitioner, it 22 appears that the same was filed at the pre-trial stage contending that the Vice Chancellor had no jurisdiction to grant sanction for prosecution as the appointing authority of the petitioner was the Executive Council of the University. In response to such petition, the Vice Chancellor of the University was asked to appear and he deposed before the learned court below that he had exercised his emergency power under Section 11(3) of the Universities Act, 2009. The learned court below by considering the provision of Section 11(3) of the Universities Act, 2009 has rejected the petition filed by the petitioner under Section 19(4) of Prevention of Corruption Act, 1988 vide impugned order dated 28.06.2018.
47. Initially the point raised was the action of the Vice Chancellor in granting prosecution sanction being wholly without jurisdiction, but the statements made by the Vice-Chancellor before the learned court below, the issue has taken a different turn and it has been claimed that the sanction for prosecution was granted by the Vice-Chancellor in exercise of power under Section 11(3) of the Central Universities Act, 2009 as the Executive Council was not in session and in such circumstances, he was the authority competent to grant sanction for prosecution of the petitioner. It was argued by the petitioner before this Court that the exercise of powers by the Vice Chancellor in granting sanction for prosecution and its subsequent ratification by the Executive Council is an improper exercise of power. The point that the action is without jurisdiction is entirely different from improper exercise of power. It is not in dispute that the Vice Chancellor has certain emergency powers, but the condition precedent under Section 11(3) of Central Universities Act, 2009 is required to be satisfied. In view of the initial plea which was taken by the petitioner before the learned court below, there was no occasion to bring the entire file/record at the stage of disposal of the petition under Section 19(4) of the Prevention of Corruption Act, 1988 to demonstrate that the condition precedent to exercise the emergency power was duly satisfied which is essentially a matter of trial.
48. The learned counsel for the petitioner while challenging the impugned order has interalia argued before this Court that neither the condition precedent for exercise of power under Section 11(3) of the Universities Act, 2009 was satisfied, nor the matter was placed before the Executive Council for approval at the earliest as per the mandate of Section 11 itself and 23 therefore, the sanction for prosecution is fit to be quashed.
49. In support of such arguments, the petitioner has tried to bring on record certain documents by filing supplementary affidavit on 31.01.2020 after the arguments of the parties were already concluded on 22.01.2020 and the matter was posted for dictation of the judgement in open court on 03.02.2020. However, on 03.02.2020 the learned counsel for the C.B.I. objected to filing of such supplementary affidavit after conclusion of hearing that too without the leave of the court and the matter was directed to be posted on 04.02.2020 at the request of the learned counsel for the petitioner. On 04.02.2020, the learned counsel for the petitioner submitted that he does not want to press the supplementary affidavit filed on 31.01.2020 and the arguments were again recorded to be concluded on 04.02.2020 and the order was reserved. However, in the Written Notes of Arguments filed by the petitioner, he has referred to supplementary affidavit (with annexures) filed on 31.01.2020, which in the considered view of this court cannot be taken into consideration in view of the submissions of the learned counsel for the petitioner recorded in the order dated 04.02.2020.
50. The learned counsel for the petitioner has relied upon a number of judgements in support of the aforesaid submissions challenging the manner in which the emergency power has been exercised by the Vice-Chancellor in granting sanction for prosecution and its ratification by the executive counsel of the University.
51. So far as the judgment passed by Hon'ble Delhi High Court in the case of (Bhupendra Singh vs. University of Delhi and Others) is concerned, this Court finds that in the said case, the writ petitioner had challenged the exercise of emergency powers by the Vice-Chancellor and the Hon'ble Delhi High Court found that the records did not show the existence of any emergency situation and in such circumstances, the exercise of emergency powers by the Vice-Chancellor was held to be not sustainable. It was held that whenever a statute confers a power on the administrative authority and makes the exercise of that power conditional on the existence of certain circumstances or conditions, the formation of an opinion by that authority regarding their existence, there may be involvement of an element of subjectivity, but it is equally true that when the exercise of power rests on fulfilment of conditions precedent, it must be shown that the existence of 24 such conditions led to the exercise of that power and it must also be shown that exercise of power was based on relevant grounds. In the said case, the counter-affidavit of the University made it clear that there was nothing on record to show existence of any emergency which called for action by the Vice-Chancellor under the Statute. The Hon'ble Delhi High Court was also of the view that when the very existence of an emergency is in question, the University ought to have pleaded the necessary facts and placed material on record to show the existence of the emergency in order to justify the exercise of power by the Vice Chancellor and it was found that there was no recording on the file about the nature of emergency.
52. So far as the judgment passed by Hon'ble Kerala High Court in the case of Leela Krishnan vs. Kochin University of Science &Tenchnology and Others (supra) is concerned, the question for consideration before the Court was whether the action of the Vice-Chancellor in not permitting the petitioner to take part in the proceedings of the Syndicate and other bodies of the University, as confirmed by the Syndicate, is legal. The Hon'ble Kerala High Court held that there were no circumstances existing for the Vice- Chancellor to exercise power under Section 11(11) of the Act and such action was illegal and consequently, the approval which was granted by the Syndicate cannot validate the same. In the said judgement, the Hon'ble Kerala High Court while holding the action of the Vice Chancellor as illegal also examined the earlier records of meetings of the Syndicate and did not confine its consideration to the order impugned.
53. Thus, this Court finds that the aforesaid two judgements clearly hold that the nature of emergency calling for exercise of power by the Vice- Chancellor could be proved even from the records/files which is certainly a matter of evidence and trial. They also hold that if the exercise of power by the Vice-Chancellor is itself illegal, then the ratification cannot validate the same.
54. It is the specific case of the present petitioner that the petitioner had raised the plea in the petition filed under Section 19(4) of the P.C Act, 1988 that the Vice-Chancellor had no jurisdiction to grant sanction for prosecution and it was the Executive Council alone who could have granted the sanction. It is further the case of the petitioner that exercise of powers under Section 11(3) of the Central Universities Act, 2009 by Vice-Chancellor came into 25 surface for the first time when C.B.I. filed affidavit on 27.03.2018 before the learned court below.
55. The petitioner has argued that the condition precedent for exercise of power by the Vice-Chancellor under Section 11(3) of the Central Universities Act, 2009 did not exist as there was no urgent situation for exercise of such power by the Vice-Chancellor and also that the matter of grant of sanction was not placed before the Executive Council in the next meeting and accordingly, the confirmation of the sanction for prosecution by the Executive Council is meaningless. It is not the case of the petitioner that Vice Chancellor under Section 11(3) of the Central Universities Act, 2009 has no such power and his exercise of power is wholly without jurisdiction. Considering the limited plea which was initially raised by the petitioner in the petition filed before the learned court below regarding the jurisdiction of the Vice-Chancellor, there was no occasion for the Vice-Chancellor during the stage of enquiry to demonstrate before the court regarding the nature of emergency which called for a decision under Section 11(3) of the Central Universities Act, 2009.
56. In the aforesaid circumstances, this Court is of the considered view that the entire facts regarding exercise of power by the Vice-Chancellor would come to light only upon production of evidence in the trial. Accordingly, the aforesaid judgements relied upon by the petitioner does not help the petitioner at this stage of the case.
57. This Court also finds that Section 11(3) of Central Universities Act, 2009 clearly provides that if the decision of the Vice-Chancellor is placed before the authority and the authority is of the opinion that such action ought not to have been taken, it may refer the matter to the visitor whose decision thereon shall be final. This Court further finds that there is an inbuilt mechanism under the statute itself to pronounce on the exercise of power by the Vice-Chancellor at the time of ratification and it is open to the authority to opine that such exercise of power under Section 11(3) of the Central Universities Act, 2009 ought not to have been taken by the Vice-Chancellor. This Court finds that admittedly the decision of the Vice-Chancellor was ratified by the Executive Council and at this stage, without examining the records, it cannot be said that the members of the Executive Council did not properly examine the action of the Vice-Chancellor. The dates on which the 26 meetings of the executive committee were held is also not on record.
58. While applying the ratio of the said judgment and the manner it has been dealt with by Hon'ble Delhi High Court and Hon'ble Kerala High Court, this Court is of the considered view that the records/files of the sanction order for prosecution as well as its ratification by the Executive Council are to be examined and no conclusive finding on the point of existence or non-existence of any emergency situation at the time when the Vice-Chancellor exercised his power under Section 11(3) of Central Universities Act, 2009 can be recorded by this Court in the petition under Section 482 of Cr.P.C as the same are essentially matters of trial. This Court also finds that neither the sanction order for prosecution, nor the order of ratification of the decision of the Vice-Chancellor has been specifically challenged by the petitioner in this petition and accordingly, the University and its authorities are not parties before this court to respond to the contentions of the petitioner and produce the records to satisfy this Court.
59. So far as the judgment passed by the Hon'ble Calcutta High Court in the case of Dilip Kumar Sarkar vs. University of North Bengal and Others is concerned, the issue before the Court was as follows: -
"Firstly, as to whether Court can enquire into the question as to whether such opinion has been formed at all or not. Secondly, if such opinion is formed, whether the fact that there was application of mind before formation of opinion or not ought to reflect in the order itself or it shall be automatically presumed that an authority vested with the power to exercise such emergency power had applied its mind before exercising such power."
60. This Court finds that the Hon'ble Calcutta High Court was dealing with an issue as to whether application of mind before formation of opinion to exercise emergency power should reflect in the order itself or it can be presumed to have been applied. The Hon'ble Calcutta High Court was not dealing with an issue as to whether the formation of opinion to exercise emergency power can be recorded or reflected from the files concerning the decision as in the said matter, it was nobody's case that the records/files of the decision contained the reasons for exercise of emergency powers. Accordingly, the said judgement passed by Hon'ble Calcutta High Court does not apply to the facts and circumstances of this case. The Hon'ble Calcutta High Court was also of the view that a person aggrieved by any 27 action taken in pursuance of such extraordinary power has a right to test if such power has been exercised in the manner prescribed in the statute or not and accordingly held that in absence of proper formation of opinion, any action taken in exercise of such extraordinary or emergency power would be invalid.
61. This Court is of the view that existence of an emergency situation is a condition precedent for exercise of emergency power under Section 11(3) of Central Universities Act, 2009 and the same can be seen from the records / files also for the purposes of judicial review of the administrative decision granting sanction for prosecution of the petitioner. It is one thing to say that the order itself should reflect the emergency situation and it is another thing to say that the records/files should reflect the emergency situation for exercise of emergency powers. The Hon'ble Delhi High Court in the judgment passed in the case of Bhupendra Singh (supra) had referred to the record of the file to find out about the nature of emergency calling for exercise of emergency powers by the Vice Chancellor and having not found any such record on the file interfered with the exercise of emergency power by the Vice-Chancellor.
This is over and above the fact that in the present case, the petitioner has neither challenged the order of sanction passed by the Vice-Chancellor, nor has challenged the order of ratification passed by the Executive Council under Section 11(3) of Central Universities Act, 2009 itself although in the written submissions repeatedly it has been prayed that the sanction order may be set aside without there being any such prayer in the petition / interlocutory applications. Otherwise also, this Court is of the considered view that the legality and validity of the sanction order passed by the Vice- Chancellor and subsequently confirmed by the Executive Council has to be considered and tested by the learned court below at the stage of trial as it requires elaborate evidence on the point by production of the records/files relating to existence of emergency situation for grant of sanction and also records of its subsequent ratification.
62. In the judgement passed by the Hon'ble Supreme Court reported in (1997) 7 SCC 622 (MansukhlalVithaldas Chauhan Vs. State of Gujarat), it has been held in Para-18 as follows:-
28"18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (emphasis supplied)"
63. The law regarding scope of judicial review of order granting sanction for prosecution has been discussed in Paras-25 to 30 as follows:-
25. This principle was reiterated in Tata Cellular v. Union of India in which it was, inter alia, laid down that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?;
2. committed an error of law;
3. committed a breach of the rules of natural justice;
4. reached a decision which no reasonable tribunal would have reached; or
5. abused its powers.
26. ..........
28. In Sterling Computers Ltd. v. M&N Publications Ltd. it was pointed out that while exercising the power of judicial review, the Court is concerned primarily as to whether there has been any infirmity in the decision-making process? ...........
29. ...........
30. A Division Bench of this Court comprising Kuldip Singh and B.P. Jeevan Reddy, JJ. in U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. observed as under: (SCC pp. 306-07, para 11) "11. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of India. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-
judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of 29 administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred'. (Lord Diplock in Secy. of State for Education and Science v. Tameside Metropolitan Borough Council AC at p. 1064.) The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene."
31. In the background of the above principles, let us now scrutinise the judgment of the Gujarat High Court which, let us say here and now, could only direct the Government for expeditious disposal of the matter of sanction.
32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. .................
The discretion not to sanction the prosecution was thus taken away by the High Court.
64. While laying down the law with regard to judicial review/scrutiny of the order granting or refusing sanction, the Hon'ble Supreme Court has also examined the file noting of the secretariat to find out with regards to grant of sanction for prosecution and held the sanction for prosecution to be bad in law and consequently has allowed the appeal.
65. This judgement has also been followed in the judgement passed by the Hon'ble Supreme Court reported in (2009) 17 SCC 92 (State of Punjab and Another Vs. Mohammed Iqbal Bhatti) and in Para-7, it has been held as under:-
"7. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidence must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidence may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the superior courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered. (See MansukhlalVithaldas Chauhan v.30
State of Gujarat.) The authority concerned cannot also pass an order of sanction subject to ratification of a higher authority. [See State v. Dr. R.C. Anand.] (emphasis supplied)"
66. This Court finds that the Hon'ble Supreme Court, while examining the matter of decision-making process to grant sanction for prosecution, had thought it proper to examine the file noting also to examine the decision- making process and the decision-making authority. Accordingly, this Court is of the considered view that in the present case, even if the decision making process is not reflecting in the order granting sanction for prosecution, but in order to arrive at a conclusion regarding the competence of the sanctioning authority and the circumstances in which the sanction for prosecution has been granted by the Vice-Chancellor i.e. whether he rightly exercised the emergency power under Section 11(3) of the Central Universities Act, 2009 and whether the condition precedent for exercising such power existed on the day of grant of sanction for prosecution, the evidence is required to be led and the records/files are required to be examined and then to arrive at a conclusion regarding legality and validity of sanction for prosecution. The decision-making process is required to be scrutinised on the basis of evidence in the trial which is yet to begin. The source of power of the authority passing an order of sanction must also be considered.
67. In the case decided by Hon'ble the Supreme Court, Dinesh Kumar vs. Chairman, Airport Authority of India, reported in (2012) 1 SCC 532, it has been held at Paras- 9 and 10 as follows:-
9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal5 expressed in no uncertain terms that the question of 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 Badal5, this Court referred to invalidity of sanction on account of non- application of mind.
10. 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 31 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.
68. The aforesaid judgement has been recently followed by the Hon'ble Supreme Court in the judgment dated 25.09.2019 passed by the Hon'ble Supreme Court in Cr. Appeal Nos. 1489-1490 of 2019 (Central Bureau of Investigation -versus- Mrs. Pramila Virendra Kumar and Another). The Hon'ble Supreme Court in Para-13 of the said judgement held that absence of sanction can be agitated at the threshold, but invalidity of sanction is to be raised during trial as there is a distinction between the absence of sanction and invalidity of sanction. It was held in the said case that admittedly there was a sanction though the accused were seeking to pick holes in the manner the sanction has been granted and to claim that the same is defective, which was held to be a matter to be considered in the trial.
69. There is certainly a distinction between the situation where the sanction is wholly invalid and is a nullity on the one hand and when the sanction order is challenged on the ground of alleged illegal/irregular assumption of jurisdiction under the statute on the ground that the condition precedent for exercise of power under Section 11(3) of the Central Universities Act, 2009 was not satisfied and the decision to grant sanction for prosecution was not placed before the Executive Council of the University as per the mandate of the statute. Considering the aforesaid judgements, this Court is of the considered view that the point regarding invalidity of sanction for prosecution which is sought to be agitated is required to be considered by adducing evidence and examination of the records of the University particularly the file noting relating to the order granting sanction by the Vice-Chancellor as well as the records of the Executive Council who has subsequently approved the decision of the Vice- Chancellor granting sanction for prosecution of the petitioner .
70. Upon perusal of the impugned order dated 28.06.2018, this Court finds that the learned court below has rejected the petition filed by the petitioner under Section 19(4) of Prevention of Corruption Act, 1988 and has virtually closed the issue of legality and validity of sanction for prosecution of the petitioner granted by the Vice-Chancellor without considering the fact that once sanction for prosecution has been granted, its legality and validity 32 as well as the questions regarding exercise of power by the sanctioning authority are essentially matters of trial as it requires examination of evidence to be produced at the stage of trial.
71. Considering the facts and circumstances of this case, this Court is of the considered view that the issue of legality and validity of sanction for prosecution of the petitioner granted by the Vice Chancellor as well as the questions regarding exercise of power by the sanctioning authority is required to be decided by the learned court below during trial of the petitioner. In order to meet the ends of justice, it would be suffice to observe that the parties will not be prejudiced with any observation/finding recorded by the learned court below in the impugned order dated 28.06.2018 passed on the petition filed under Section 19(4) of Prevention of Corruption Act, 1988 and it will be open for the parties to raise all the points at the stage of trial in accordance with law.
72. It is also open to the petitioner to raise all points before the learned court below at the stage of trial and the observations made in this order will not prejudice the case of either party at the stage of trial.
73. With the aforesaid observations, this criminal miscellaneous petition is hereby disposed of.
74. Interim order, if any, stands vacated.
75. Pending interlocutory applications, if any, are dismissed as not pressed.
76. Let this order be communicated to the learned court below through 'e- mail'.
(Anubha Rawat Choudhary, J.) Mukul /-