Madhya Pradesh High Court
K.K. Sharma vs The State Of Madhya Pradesh on 15 December, 2022
Author: Rohit Arya
Bench: Rohit Arya, Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL REVISION NO. 1980 OF 2022
BETWEEN:-
VINAY KUMAR GUPTA S/O LATE SHRI RAMBABU
GUPTA, AGED 62 YEARS, OCCUPATION -
GOVERNMENT SERVICE, ADDRESS - OFFICE OF
NAGAR PARISHAD, JD OFFICE, GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI F.A.SHAH- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
EOW, DISTRICT GWALIOR
...RESPONDENT
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
MCRC. NO. 23986 OF 2022
BETWEEN:-
A.K.BANSAL S/O LATE SHRI R.B.BANSAL, AGED 60
YEARS, OCCUPATION - SERVICE, R/O
2
JHUNDPURA, TAHSIL SABALGARH, DISTRICT
MORENA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.K.SHARMA, SENIOR ADVOCATE WITH
SHRI V.K.AGRAWAL- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ECONOMIC OFFENCES BUREAU, BHOPAL
(MADHYA PRADESH)
...RESPONDENT
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
MCRC NO. 24409 OF 2022
BETWEEN:-
ANIL VERMA S/O LATE SHRI RAMESH CHANDRA
VERMA, AGE:56 YEARS, OCCUPATION : SERVICE,
R/O C-2, R.P. COLONY, TANSEN ROAD, GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SIDDHARTH SHARMA- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ECONOMIC OFFENCE WING, BHOPAL (MADHYA
PRADESH)
...RESPONDENT
3
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
MCRC. NO. 27571 OF 2022
BETWEEN:-
K.K.SHARMA S/O LATE SHRI RAMCHARANLAL
SHARMA, AGE 61 YEARS, OCCUPATION -
SERVICE, R/O 357, NEW HOUSING BOARD
COLONY, MORENA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIVEK KHEDKAR- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ECONOMIC OFFENCE BUREAU, BHOPAL
(MADHYA PRADESH)
...RESPONDENT
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
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Reserved on : 12/12/2022
Pronounced on : 15/12/2022
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These petitions having been heard and reserved for
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orders, coming on for pronouncement this day, Hon'ble Shri
Justice Rohit Arya pronounced the following:
ORDER
This batch of revision petition under S.397/401 of Cr.P.C. and petitions under S.482 of the Cr.P.C. is directed against a common order dated 6/5/2022 passed by Special Judge (under the Prevention of Corruption Act, 1988 (for short "the PC Act"), Morena in Special Case No. 02/2002, whereby on an application filed by the prosecution under section 216 of the Cr.P.C., the learned trial Judge, after an elapse of ten years, has framed the charges for the offences punishable under sections 420 read with 120B of the IPC, 13(1)(d) and 13(2) of the PC Act, in addition to the charges already framed earlier vide order dated 7/5/2012 for the offences punishable under sections 120B, 465 and 471 of the IPC.
2. Facts essential for disposal of these petitions lie in a narrow compass and are stated thus:
(i) Petitioners are employees of Municipal Council, Morena.
It is alleged that in connivance with other accused persons, they 5 hatched a conspiracy and in furtherance whereof procured allotment of land falling in Survey Nos. 429, 430 and 431 of Village Jaurakhurd in their favour, as well as, in favour of other persons by wrongly ascribing the said land for sale in note-sheet dated 11/11/94 despite knowing that it was reserved for Mela Ground, Stadium and Commissioner Income Tax (State Govt), Chamabal Division, besides mentioning its rate as 10/- per square feet which was 90/- per square feet as per government guideline.
(ii) In the wake of the aforesaid, vide order dated 7/5/2012, charges for the offences punishable under sections 120B, 465 and 471 of the IPC were framed against the petitioners. The learned trial Judge, while, framing the said charges, observed that accused persons namely S/Shri A.K.Verma, K.K.Sharma, Vinay Kumar Gupta, A.K.Bansal and R.P.Shukla were employees of Nagar Palika Parishad. As per section 19(1)(c) of the PC Act, no Court could take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from office. As per 6 section 94(4) of the M.P. Municipalities Act, 1961 (herienafter referred to as the "Act of 1961"), the aforesaid employees could be removed by the Nagar Palika Parishad only after approval of the State Government. The learned Judge, accordingly, held that from the above it was clear that as per Nagar Palika Adhiniyam, only Nagar Palika Parishad was competent to grant sanction for prosecution of aforesaid employees and the Nagar Palika Parishad was not denuded of the said right merely for the reason that approval of State Government was required for removal of such employees. The learned Judge was further of the view that Principal Secretary, Law and Legislative Department was not competent to remove those employees and, therefore, the sanction for prosecution given by him was nonest in the eyes of law. In support of such conclusion, he relied upon decision of the Apex Court in the case of Manoranjan Prasad Chaudhary Vs. State of Bihar ((2002)10 SCC 688). So far as prosecution for offences under the IPC in absence of sanction under section 197 of the Cr.P.C. is concerned, learned Judge observed that the said accused persons were neither employees of Union of India, nor had been employed in connection with the affairs of the 7 State of Madhya Pradesh, hence even in absence of sanction under section 197 Cr.P.C., they were liable to be prosecuted for the offences under the IPC. With the aforesaid reasoning, charges for the offences punishable under sections 120B, 465 and 471, IPC were framed against the present petitioners.
(iii) On being charged with the aforesaid offences, the petitioners abjured the guilt, leading to commencement of trial. It took around ten years for the evidence to conclude, during which period about 33 prosecution witnesses were examined. Defence also examined its witnesses and the case was fixed for delivery of judgment.
(iv) On 26/04/2022, prosecution moved an application under section 216 of the Cr.P.C. seeking addition of charges for the offences punishable under sections 420 of the IPC and 13(1)(d) and 13(2) of the PC Act. The same was replied to by the petitioners.
(v) However, vide impugned order dated 6/5/2022, learned trial Judge took a different view of the matter and held that as Nagar Palika Parishad was competent to remove the said employees after obtaining approval from State Government, it 8 meant that the State Government was also competent to remove them. Relying upon decision in the case of State of M.P. Vs. Anand Mohan ((2015)9 SCC 35), the learned Judge held that vide order dated 8/2/1988, the power to grant sanction was delegated to the Department of Law and Justice and, therefore, the sanction granted by the Principal Secretary, Law and Legislative Department was a valid sanction. Accordingly, charges for the offences punishable under sections 420 read with 120B of the IPC and 13(1)(d) and 13(2) of the PC Act have been also been framed against the petitioners, aggrieved whereof, the instant petitions have been filed.
3. Assailing the legality, validity and propriety of the order dated 6/5/2022 framing additional charges under section 216 of the Cr.P.C., learned counsel have made the following submissions:-
(a) By the order dated 6/5/2022, the learned trial Judge has in fact reviewed his earlier order dated 7/5/2012 after a gap of about 10 years. No new material was brought before the Court.
In fact, the learned trial Judge has taken a somersault from his 9 earlier view in the context of sanction given by Principal Secretary, Law and Legislative Department and, therefore, the said order does not fall within the ambit of S.216 of the Cr.P.C., but in essence amounts to review which is barred under section 362 of the Cr.P.C.
(b) Learned trial Judge has also gone oblivion of the fact that in this case the FIR was registered in the year 1996 and the petitioners are facing the agony of trial for last 26 years. The evidence is closed and the case is at the stage of judgment. Now, such amendment of charges would result in a denovo trial which may go for another 20 years and, as such, substantial prejudice would be caused to the petitioners.
(c) The order dated 7/5/2012 has not been challenged by the prosecution/respondent in any Superior Court till date and, as such, the same has attained finality and cannot be reviewed.
(d) As per decision of this Court in the case of State of M.P. Vs. Ashok Kumar Sharma (2008 (3) JLJ 34), petitioners are employees of the Municipality and not of the State Government, therefore, the sanction granted by the Principal Secretary, Law and Legislative Department is of no avail in case of the 10 petitioners in view of section 94(4) of the Act of 1961.
(e) The decision relied upon by learned trial Judge in the case of Anand Mohan (Supra) was of no avail, being distinguishable on facts.
4. Per contra learned Additional Advocate General supported the impugned order dated 6/5/2022 altering the charges framed earlier on 7/5/2012, with the submission that that the learned trial Judge has framed additional charges under S.216 of the Cr.P.C.., which specifically provides that a Court may alter or add to any charge at any time before judgment is pronounced. The charges under the PC Act have been added when the case was fixed for delivery of judgment. As such, no exception can be taken thereto in the light of the mandate of S.216 of the Cr.P.C.. So far as the imputation of prejudice with addition of charge at such belated stage is concerned, that plea also cannot be countenanced in the wake of sub-section (4) of S.216 of the Cr.P.C. which encompasses specific safeguards in such an eventuality to avoid any prejudice. He further submitted that in view of decision of Apex Court in the case of Anand 11 Mohan (Supra), the sanction granted by the Secretary, Law and Legislative Affairs Department is a valid sanction and, therefore, the incorrect view taken by the earlier Presiding Officer has rightly been rectified by the learned trial Judge. The same does not amount to review as the Apex Court in the case of Anant Prakash Sinha Vs. State of Haryana ((2016)6 SCC 105) has categorically held that the Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of complaint or the FIR or accompanying documents or material brought on record during the course of trial. In the instant case, there was a defect in framing of charges, which has been addressed by the order impugned. Besides, S.362 of the Cr.P.C. forbiding alteration or review except for clerical or arithmetical errors, operates in cases of judgment and final orders and the order framing charge does not fall in either of the categories. Hence, the order impugned being impeccable, does not deserve any interference and the present petitions are liable to be dismissed at the threshold.
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5. Heard, learned counsel for the parties.
6. So far as the submissions of learned Additional Advocate General with regard to sections 216 and 362 of the Cr.P.C., as detailed above, are concerned, we do not find the same to be pregnable. However, the genesis of the controversy in hand is the sanction granted by the Principal Secretary, Law and Legislative Affairs Department that has formed the substratum of the additional charges framed under the PC Act by the order impugned, particularly in absence of any sanction by the Municipal Council. It is worthwhile to recapitulate that by the order impugned, inter alia charges for the offences punishable under sections 13(1)(d) and 13(2) of the PC Act have been framed against the petitioners. In this behalf, sub-sections (1) and (2) of S.19 of the PC Act that necessitate previous sanction for prosecution are pertinent and the same read thus:-
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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]-- (a) in the case of a person who is employed in connection with the affairs of the Union 13 and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(Emphasis supplied)
7. Thus, from the above it is clear that for taking cognizance for the offence punishable under section 13 of the PC Act, previous sanction of the Authority competent to remove them from service is imperative. In the instant case, the sanction has not been accorded by the Municipal Council, but by Principal Secretary, Law and Legislative Affairs. As such, the pivotal question governing the validity of such sanction that arises for consideration is :
"Whether on facts and in the circumstances of the case 14 the petitioners can be removed from service:
(i) by the Municipal Council, or;
(ii) by the State Government, or;
(iii) by the Municipal Council with approval of the
State Government;
In other words who is the competent Authority for imposition of penalty of removal on petitioners ?
8. Admittedly, petitioners Vinay Kumar Gupta, A.K.Bansal, Anil Verma and K.K.Sharma, during the relevant period, were posted as Assistant Engineer, Revenue Inspector and Sub Engineers respectively at Municipal Council, Morena and, as such, their services are governed by the provisions of the Act of 1961 and Madhya Pradesh Municipal Employees Recruitment and Conditions of Service Rules, 1968 framed thereunder (for brevity "the Rules of 1968").
Chapter IV of the Act of 1961 captioned "Chief Municipal Officer and Staff of Municipality" inter alia deals with Constitution of State Municipal Service and engagement of staff. Schedule I appended thereto amongst others enlists Assistant Engineer, Sub-Engineer and Revenue Inspector as Municipal Employees. Section 94 provides for Appointment of 15 Staff. Sub-sections (1), (3) and (6) of the pre-amended section 94 which was applicable till 5/8/2014; relevant for the purpose, are reproduced for ready reference:-
"(1) Every Council shall, subject to rules framed under Section 95 and in addition to appointment of members of the Municipal Services of the State under sub-section (1) of section 86, appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties, as per the norms specified from time to time by the State Government.
(3) The appointment of Revenue Officer, Accounts Officer, Sanitary Inspector, Sub-
Engineer, Revenue Inspector and Accountant shall be subject to confirmation by the State Government and no such post or the post of any other officer or servant as may be specified by the State Government in this behalf shall be created or abolished and no alterations in the emoluments thereof shall be made without the previous approval of the State Government, and every appointment to, and dismissal from such post, shall be subject to a like approval.
(6) Unless the State Government otherwise directs the power of appointing Municipal Officers and servants other than those mentioned in or specified under sub-section (4) shall vest in the President-in-Council"
(Emphasis supplied) Rule 2(e) of the Rules of 1968 defines "Municipal Employee" to mean a person appointed to or borne on the cadre of the Municipal staff other than an member of State Municipal 16 Service (Executive).
Rule 2(f) of the Rules of 1968 characterizes "Municipal Service" as service or group of posts in connection with the affairs of the Municipality other than the State Municipal Service (Executive).
Part XII of the Rules of 1968 deals with Control and Discipline. Rules 48 and 49 respectively provide for Control and Discipline and the same read thus:-
48. Control - All Municipal employees shall be subject to the superintendence and control of the Council.
49. Penalties - The following penalties may, for good and sufficient reasons as hereinafter provided, be imposed on a municipal employee, namely :-
Minor Penalties
(i) .... .... ....
(ii) .... .... ....
(iii) .... .... ....
(iv) .... .... ....
Major Penalties
(v) .... .... ....
(vi) .... .... ....
(vii) compulsory retirement;
(viii) removal from municipal service which shall not be a disqualification for future employment;17
(ix) dismissal from municipal service which shall ordinarily be a disqualification for future employment;"
Rule 51 thereof provides for Disciplinary Authoriites and reads thus:-
"51. Disciplinary authorities - Subject to the provisions of the Act and these rules the Municipal Council shall have the powers to impose any of the penalties specified in rule 49 on any municipal employee holding post specified in sub-section (4) of section 94 of the Act and in the case of other municipal employees the Standing Committee shall have the power to impose any of the said penalties on him".
(Emphasis supplied) Thus, from the above, it is explicit that petitioners are the employees of Municipal Council and the power to remove them from service vests with the Municipal Council subject to the provisions of S.94(4) of the Act of 1961 quoted above.
9. In view of the aforesaid discussion, it is crystal clear that unless Municipal Council passes an order of removal of a Municipal Employee under Rule 49 of the Rules of 1968, albeit with observance of due process of law, the stage of according approval by the State Government under section 94(4) of the Act of 1961 does not not come into existence. Under such 18 circumstances, the requirement of mandate as contained under section 19(1)(c) of the PC Act relating to sanction for prosecution has to be understood in the context of section 94(4) of the Act of 1961 read with Rules 49 and 51 of the Rules of 1968. In other words, unless the Municipal Council decides to remove the municipal employees enlisted in S.94(4) viz. Revenue Officer, Accounts Officer, Sanitary Inspector, Sub- Engineer, Revenue Inspector and Accountant, the question of according approval thereto by the State Government, as provided for in the said section, would not arise, as aforesaid. Consequently, for a valid sanction for prosecution as contemplated in section 19(1) of the PC Act, firstly the Municipal Council, upon due deliberation, must decide to accord sanction which the Government is required to approve, otherwise the same cannot be termed as a valid sanction. Hence, the answer to question nos. (i) and (ii) above is in negative, while that to question no.(iii) is in affirmative.
10. In view of the aforesaid discussion, the sanction granted by Principal Secretary in absence of any order/recommendation 19 for removal by the Municipal Council cannot be termed as a valid sanction. The ratio of judgment in Anand Mohan (Supra) relied upon by the learned trial Judge in fact has no bearing to the factual matrix in hand. In the said case, for prosecuting Engineers working with the Bhopal Development Authority, the Economic Offences Wing had sought sanction under section 19(1)(c) of the PC Act from the State Government. The Secretary, Housing and Environment declined to grant sanction. However, the sanction was accorded by the Department of Law and Legislative Affairs vide order dated 20/11/2012. The said order was challenged in the High Court on the premise that the Department of Housing and Environment had already declined sanction vide order dated 8/3/2011, therefore, the Department of Law and Legislative Affairs had no authority to accord sanction by the impugned order dated 20/11/2012. The High Court also observed that the Econcomic Offences Wing did not challenge the legality and validity of the order dated 8.3.2011 and had submitted charge-sheet. The High Court opined that as the Department of Law and Legislative Affairs was granted power to grant sanction only vide circular dated 28/2/1998, therefore, it 20 was not competent to grant sanction in respect of offences alleged to have been committed in the year 1997. The Hon'ble Supreme Court set aside the order of the High Court and observed in paragraph 14 as under:-
"14. We are unable to accept the view taken by the High Court for the reason that from annexure P-1 and annexure P-2, it is evident that the power to grant the sanction for prosecution, already existed with the Department of Law and Legislative Affairs, since February, 1988. The circular letter dated 28.02.1998 (Annexure P-5) does not confer any new power and it only clarifies that Department of Law and Justice is a competent authority not only in respect of investigations made by Lokayukta Organization, but also the State Economic Offences Investigation Wing. The power with the appellant No.2 to grant the sanction is, in fact, conferred by the rule as amended vide notification dated 03.02.1988 published in the Official Gazette. After such amendment in the rule whereby power to grant sanction was delegated to Department of Law and Justice, it cannot said that Administrative Department had power to decline sanction as it has done vide its order dated 10.07.1997. "
(Emphasis supplied) Apparently, the said judgment has no application to the factual matrix in hand in view of the fact that the petitioners are employees of the Municipal Council and have not been appointed in connection with the affairs of the State, contrary to 21 the facts in the said ratio, as is explicit from the following extract:-
"8. From the section quoted above, it is clear that sanction for prosecution in respect of the public servant employed in connection with the affairs of the State, who is not removable from his office save by or with the sanction of the State Government, such Government shall be, authority to grant sanction for prosecution. It is not disputed that the previous sanction was sought by EOW for prosecution of the respondents. The only issue is as to which of the departments of the State was competent to grant the sanction......."
(Emphasis supplied)
11. At this stage, it is considered apposite to deal with the order dated 10/8/2017 passed by learned Single Judge in Cr.R. No.365/2012 (Vinay Kumar Vs. State of Madhya Pradesh) and Cr.R. No. 969/2013 (A.K.Bansal Vs. State of Madhya Pradesh), who are also petitioners in the instant case. At the relevant point of time, petitioners therein namely Vinay Kumar and A.K.Bansal were working as Assistant Engineer and Revenue Inspector respectively at Municipal Council, Morena. Undisputedly, their service conditions were regulated by the Rules of 1968 as both were municipal employees within the meaning of Rule 2(e) of the Rules of 1968 framed under sub-section (1) of S.355 read 22 with S.95 of the Act of 1961 and members of Municipal Service as defined under Rule 2(f) thereof, and were not members of State Municipal Service under sub-section (1) of section 86 of the Act of 1961 as service conditions of members of such services are governed by M.P. State Municipal Service (Executive) Rules, 1973.
The aforesaid two persons challenged on merits the order dated 7/5/2012 framing charges for the offences punishable under sections 120B, 465 and 471 of the IPC, inter alia with the contention that the State Government (Department of Law and Legislative Affairs, Bhopal) was not competent to accord sanction for prosecution. As a matter of fact, the contention relating to sanction by Government in the context of charges framed under the IPC was misplaced and misdirected for the simple reason that no sanction is required to prosecute a municipal employee for the offences under the IPC, as under
section 197 of the Cr.P.C., protection of prior sanction is available only to public servants who have been appointed by the Central or State Government and employed in connection with the affairs of that Government. However, the learned 23 Single Judge dealt with the contention in the context of S.19(1)
(c) of the PC Act though no charge was framed under the PC Act at that time. Therefore, firstly the issue of competence of the State Government for according sanction for prosecution did not arise and secondly the same could not have been answered in the context of S.19(1)(c) of the PC Act as there was no charge framed under the PC Act.
However, the said order is required to be examined as now in the changed circumstances, by the order impugned, the Court below has framed charges against the petitioners including those before the learned Single Judge under sections 13(1)(d) and 13(2) of the PC Act.
If the dictum of the learned Single Judge is applied, the sanction accorded by the State Government through Law and Legislative Affairs Department is a valid sanction within the meaning of S.19(1)(c) of the PC Act for taking cognizance for the offences punishable under sections 13(1)(d) and 13(2) of the PC Act. The aforesaid view of learned Single Judge rests upon the observations of the Hon'ble Supreme Court in the case of State of T.N. Vs. T.Thulasingham & Others (1994 Supp (2) 24 SCC 405) and State of M.P.Vs. Pradeep Kumar Gupta ((2011)6 SCC 389).
Before dealing with the applicability of aforesaid two cases, it is expedient to observe that the learned Single Judge did not deal with the fact that the petitioners were municipal employees within the meaning of Rule 2(e) of the Rules of 1968 framed under sub-section (1) of S.355 read with S.95 of the Act of 1961 and appointed under S.94(4) of the Act of 1961 by the Municipal Council with the approval of the State Government. For this reason, the judgment of the Hon'ble Supreme Court in Pradeep Kumar Gupta (Supra) had no application to the facts in hand, inasmuch as in the said case Pradeep Kumar Gupta, posted as an Engineer in Municipal Corporation, was a member of Municipal Services for the State constituted under sub-section (1) of section 86 of the Act of 1961 as defined under Rule 2(i) of the M.P. Municipal Service (Executive) Rules, 1973 which regulated his service conditions. Rule 2(b) of the said Rules defines "Appointing Authority" to mean State Government in respect to Select Grades Class I, Class II and Class III Chief Municipal Officers. Under such 25 circumstances, the Hon'ble Supreme Court held that the State Government was competent to grant sanction for prosecution as required under section 19(1)(c) of the PC Act.
Before taking note of judgment rendered by the Hon'ble Supreme Court in T.Thulasingham (Supra), it is worthwhile to mention that the factual matrix reported in the judgment does not spell out the facts having bearing on the observations of the Hon'ble Apex Court in Paragraph 77 thereof. Even otherwise, the Hon'ble Supreme Court has rejected the contention that only Special Officer appointed by the Corporation when the Corporation was superseded, was competent to grant sanction for prosecution of the delinquent therein, with the observation that if the sanction was granted by the Government which itself had appointed the Special Officer, the same cannot be faulted with. However, in the case in hand, as discussed above, under section 94(4) of the Act of 1961, Municipal Council is the competent Authority to make appointment of the Municipal Employees enlisted therein with approval of the State Government. Similar approval is required for their dismissal. Therefore, the stage of approval of the State Government to their 26 appointment or removal arises only after the Municipal Council issues an order/recommendation for appointing or removing them. That apart, the Municipal Council is not appointed by the State Government, but is is constituted under section 5 of the Act of 1961 r/w Article 243Q of the Constitution. Therefore, reliance on the said judgment by the learned Single Judge is also misplaced.
Hence, view of the learned Single Judge in the context of validity of sanction by the State Government under section 19(1)(c) of the PC Act for Municipal Employees in absence of recommendation of the Municipal Council; relevant for the purpose of the instant case, in our considered opinion, does not withstand judicial scrutiny. Accordingly, to that extent, the judgment is overruled.
12. A decision of co-ordinate Bench of this Court in respect of petitioner Kamal Kishore Sharma Vs. State of Madhya Pradesh Through Police Station Economic Offence rendered in M.Cr.C. No.19218/2017, which was a petition under S.482 of the Cr.P.C., has also been brought to fore by learned counsel for 27 the State. The said petition was filed by petitioner Kamal Kishore Sharma seeking quashment of FIR registered at Crime No.40/1996 in respect of the offences punishable under section 120B, 420 of the IPC and 13(1)(d) & 13(2) of the PC Act. The co-ordinate Bench of this Court, while dismissing the petition, in paragraph 12 placing reliance on decision in the case of Thulasingham (Supra) has observed that the State Government partook as the Authority competent to remove the petitioner from the post satisfying the requirement of section 19(1)(c) of the PC Act.
The decision in the case of Thulsingham (Supra) which forms the premise of such observations by the learned co- ordinate Bench has already been found to be distinguishable on facts, as discussed above in paragraph 11. That apart, regard being had to the nature of order passed, in absence of pleadings and non consideration of relevant provisions of the Act of 1961 and Rules of 1968, the same cannot be construed to have laid down a law having enforceability on the principles of stare decisis. Likewise, no contentions were advanced related to definition of Municipal Employee their appointment and 28 removal i.e. Rules 2(e), 48, 49, 51 of the Rules of 1968 and pre- amended S.94 of the Act of 1961 and, therefore, not considered in the aforesaid case to address the issue of competence of State Governmnent to accord sanction under section 19(1)(c) of the PC Act. Hence, the said decision, in our considered view, is sub silentio. As such, we find it difficult to concur with the same and respectfully record our disagreement.
13. In view of the aforesaid, it can safely be deduced that the sanction granted by the Principal Secretary, Law and Legislative Affairs is not a valid sanction to prosecute the petitioners for the offences under sections 13(1)(d) and 13(2) of the Act. As such, the additional charges framed under Ss. 13(1)(d) and 13(2) of the PC Act against the petitioners on the strength of such sanction, by virtue of the impugned order dated 6/5/2022, cannot be sustained and are, accordingly, set aside.
Resultantly, the petitions stand allowed to the extent indicated above.
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
(and)
ANAND
SHRIVASTAVA
2022.12.16
10:52:07
+05'30'