Madhya Pradesh High Court
Ashok Baijal vs M.P. Government on 23 January, 1998
Equivalent citations: 1998CRILJ3511
ORDER N.K. Jain, J.
1. This revision is directed against the order dated 30-8-1997 passed by the Special Judge, Indore in Special Case No. 1 of 1997 dismissing accused/applicant's objection application challenging the validity of the sanction for his prosecution accorded by the. State Government under Section 19(1)(c) of the Prevention of Corruption Act, 1988 (for short, the Act, 1988).
2. The applicant accused is an Assistant Engineer employed in the Municipal Corporation, Indore. The Special Police Establishment, Indore has filed a charge sheet against the accused applicant in the Court of Special Judge, Indore for his prosecution on the charges under Section 13(1)(e) and Section 13(2) of the Act, 1988 for allegedly possessing property disproportionate to his known sources of income. Sanction for prosecution of the applicant under Section 19 of the Act has been granted by the State Government, Department of Law and Legislature Affairs, Bhopal vide order dated 1-3-1997.
3. On appearance, the applicant accused filed objection application challenging validity of the sanction order on the ground that the State Government are not the authority competent to remvoe the applicant from his services and as such no sanction for his prosecution in terms of Section 19(1)(c) of the Act could be accorded by the State Government. The Court below after hearing both the sides dismissed the objection application holding that the State Government being higher authority than the Municipal Corporation, could in law accord sanction for prosecution.
4. I have heard Shri M.G. Upadhyaya, learned counsel for the applicant and Shri Girish Desai, Government Advocate for the respondent State.
5. Section 19 of the Act, 1988 deals with the sanction for the prosecution and reads as follows Sanction for Prosecution and other Miscellaneous Provisions.
19. Previous sanction necessary for prosecution. -
(1) No Court shall take cognizance of an offence punishable under Sections 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the State Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) to (4)....
6. As already stated, the accused applicant is an employee of the Indore Municipal Corporation and there can be no manner of doubt that he is not a person employed in connection with the affairs of the Union or of a State within the meaning of Clauses (a) and (b) of Section 19(1) of the Act, 1988. This point stands resolved by a decision of this Court in Jagmohan Lal, (1977) 1 Serv LR 746 wherein while considering the applicability of the Fundamental Rules to the Municipal Employees, it was held that these Rules are not applicable to the members of the Municipal Services and such employees are not to be termed as persons employed in connection with the affairs of the State. The case of the applicant, therefore, squarely fell within the purview of Clause (c) of Section 19(1) and sanction for prosecution could be accorded only by the authority competent to remove him from his services.
7. Section 58 of the M.P. Municipal Corporation Act, 1956 (for short the 'Act, 1956') provides. for the appointment of the officers and servants of the Corporation. Section 60 deals with the powers of discharge and infliction of penalties on such officers and servants. Sub-section (5) of Section 60 provides that no penalty as mentioned in Sub-section (2) which includes penalty of removal or dismissal, shall be imposed upon any Municipal Officer or Servant by any authority subordinate to that which makes appointment to the post he holds at the time of imposition of such penalty. Under the circumstances, the power to accord sanction under Section 19(1)(c)of the Act, 1988, therefore, vested in the authority competent to appoint the applicant accused under Section 58 of the M.P. Act, 1956 or an authority superior thereto. The State Government did not come into picture anywhere under the M.P. Act, 1956 as they are neither the appointing authority nor are vested with the power of removal of an officer of the Municipal Corporation.
8. It was strenuously argued by the learned Government Advocate that the State Government being a Superior Authority of the Municipal Corporation, is vested with the power to grant sanction for prosecution. Reliance has been placed on a Supreme Court decision in State of Tamil Nadu v. T. Thulasingam 1994 Supp (2) SCC 405.
9. I find it difficult to accept the contention of the learned Government Advocate. The ratio in T. Thulasingam's case (supra) is clearly not available to the respondent in the instant case.
10. In T. Thulasingam's case (supra), the sanction for prosecution of a Municipal Emloyee was accorded by the State Government at the time when the Corporation stood superseded and the Government had appointed Special Officer under the relevant provisions of the Municipal Laws in force in the State of Tamil Nadu. Since the sanctioning authority at the relevant time was the Special Officer appointed by the State Government, it was held that the sanction by the State Government, under these circumstances, was valid. In M.P. Act, 1956 also there are provisions (Section 422 and 423) for dissolution of Corporation and appointment of Administrator by the State Government to perform functions of the Corporation. However, in the instant case such a situation had not arisen and when the impugned sanction was accorded, the Municipal Corporation Indore was and is still in existence. There is thus no question of sanction for prosecution being granted either by the Administrator or by the State Government.
11. I thus hold that the order dated 1-3-1997 according sanction for prosecution of the applicant accused is without any authority. Unless a valid sanction is accorded in terms of Section 19(1)(c) of the Act, 1988 the Court cannot take cognizance of the offence under Section 13 of the Act against the applicant. This revision thus succeeds and is allowed. The order dated 30-8-1997 passed by the Special Judge is set aside and the applicant accused is discharged. The respondent prosecution shall, however, be free to obtain fresh sanction from the appropriate authority and rein-stitute the prosecution against the applicant accused. Needless to add, the authority concerned when approached in this behalf, shall consider the prayer for sanction and pass order in conformity with law.