Madras High Court
Mr.V.T.Gopalan vs Mr.G.Masilamani on 29 October, 2010
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 29/10/2010 *CORAM The Honble Mr.Justice M.SATHYANARAYANAN +WP.20067 of 2005 #Udaya Sankar Kundu $The Director ONGC Ltd !FOR PETITIONER : Mr.V.T.Gopalan ^FOR RESPONDENT : Mr.G.Masilamani :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 29.10.2010 Coram:
The Honble Mr.Justice M.SATHYANARAYANAN Writ Petition No.20067 of 2005 Udaya Sankar Kundu Petitioner Versus
1. The Director, Human Resources, Oil and Natural Gas Corporation Limited, Tel Bhavan, Dehradun-248003.
2. The Chairman & Managing Director, Oil and Natural Gas Corporation Limited, Jeevan Bharati Tower-II, 124, Indira Chowk, New Delhi-110 001. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a writ of Certiorarified Mandamus to call for the records pertaining to Order No.5/1/2001-Vig.(Pt) dated 21.05.2004, on the file of the first respondent as confirmed by the second respondent in order No.5/1/2001-Vig.(Pt) dated 26.05.2005 quash the same and consequently direct the respondents herein to reinstate the petitioner with back wages, continuity of service and all other attendant benefits.
For Petitioner .. Mr.V.T.Gopalan, S.C. for M/s. K.Vasu Venkat.
For Respondents .. Mr.G.Masilamani, S.C. for M/s. King & Partridge.
O R D E R The subject matter of challenge in this writ petition is the order of dismissal dated 21.05.2004, passed by the first respondent.
2. The facts leading to the filing of this writ petition are as follows:-
The petitioner was in the services of Oil and Natural Gas Commission Limited (in short ONGC), a Government of India undertaking as a Deputy Superintending Engineer (Civil) and he was due for promotion as a Superintending Engineer.
3. The petitioner was incharge of construction of MAAB Drill Site at Gollala Konderu Village, Andhra Pradesh State and before drilling operations commenced, facilities such as bunkhouses, toilets and canteen had to be established to accommodate the drilling crew.
4. A tender in this regard was awarded to the contractor viz., Mr.Bhagvan Narayana on 27.12.2000. In order to avoid delay in provision of essential provisions to the crewmen and to prevent delay in commencement of drilling operations, the petitioner who was incharge of the construction site, got a part of miscellaneous civil work executed as and when the materials arrived from the earlier site through Mr.V.Jagan Mohan Rao-another contractor who was already engaged for the purpose of executing shed work.
5. Since the miscellaneous work executed by Mr.V.Jagan Mohan Rao was a part of contract to be executed by Mr. Bhagvan Narayana, it was agreed that Mr.Bhagvan Narayana should compensate Mr.Jagan Mohan Rao to that extent, after his first bill is cleared by ONGC and the amount was also fixed at Rs.50,000/-.
6. Since Mr.Bhagvan Narayana did not settle the amount to Mr.Jagan Mohan Rao, the petitioner was pressurizing for earlier settlement as he had got execution of work done thorough him. Mr.Jagan Mohan Rao requested part settlement of Rs.25,000/- from Mr.Bhagvan Narayana as first instalment and hence the petitioner requested Mr.Bhagvan Narayana to give a sum of Rs.25,000/- to him to be handed over to Mr.Jagan Mohan Rao. However, Mr.Bhagvan Narayana misunderstood that as if the petitioner is demanding bribe, has lodged a complaint with Inspector of Police, CBI,Visahkapatnam which lead the trap and a sum of Rs.25,000/- was handed over by Mr.Bhagvan Narayana to the petitioner for the purpose of handing over the same to Mr.Jagan Mohan Rao, a trap was lead and the petitioner was caught. Therefore, a case in Crime No.RC6/(A)2001-VSB was registered by CBI, Visakhapatnam, was registered on 20.02.2001 and the petitioner was charged for the alleged commission of the offence under Section 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988.
7. The Additional Executive Director of ONGC placed the petitioner under suspension as per Rule 33(1)(c) of ONGC Conduct (Discipline and Appeal) Rules 1994. By a subsequent order dated 10.08.2001, the Headquarters of the petitioner was shifted from Rajahmundry to Cauvery Project, Karaikkal.
8. The CBI after investigation, has laid a charge sheet against the petitioner which was taken on file in C.C.No.19/2001 by the Court of Special Judge for CBI cases, Visakhapatnam and the petitioner was prosecuted for the commission of the above said offences.
9 The Court of Special Judge for CBI Cases, Visakhapatnam, vide judgment dated 20.06.2003, has convicted the petitioner and sentenced him to undergo Simple Imprisonment for one year and to pay a fine of Rs.1,000/- with default sentence of Simple Imprisonment for one month for the commission of the offence u/s 7 of the Prevention of Corruption Act and also imposed similar sentence in respect of commission of the offence u/s 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act and the sentences of imprisonment were ordered to run concurrently.
10. The first Respondent on becoming aware of the said conviction and sentence, has passed the impugned order dated 21.05.2004 by invoking Rule 41(a) of the above said Service Rules and dismissed the petitioner from service and challenge is made to the said order by filing this writ petition.
11. In the affidavit filed in support of this writ petition it is contended by the petitioner that the order of dismissal was passed by the first respondent which is neither the disciplinary authority nor the competent authority nor the appointing authority and as such it is illegal. It is further contended by the petitioner that as against the conviction and sentence, an appeal in Crl.A.No.628/2003 was filed before the High Court of Andhra Pradesh and the same is pending adjudication and in all fairness the first Respondent should have awaited for the verdict in the said appeal. It is further contended by the petitioner that the judgment under which he has been convicted and sentenced is per se unsustainable.
12. On behalf of the respondents counter affidavit has been filed contending that once the petitioner was convicted and sentenced by the competent Court, they are left with no other option except to invoke Rule 41(a) of the ONGC Rules and accordingly imposed punishment of dismissal from the service against the petitioner. It is further contended that it is not necessary to give any oral hearing before passing the said order in terms of the above said rules.
13. The petitioner has filed a reply affidavit dated 20.09.2010 wherein it has been stated that the appeal in C.A.No.628/2003 filed by him against the conviction and sentence passed by the trial Court has been allowed by the High Court of Andhra Pradesh vide judgment dated 17.12.2009 and he has been honourably acquitted and hence it is obligatory on the part of the respondents to reinstate him forthwith with continuity of service benefits and back wages.
14. Mr.V.T.Gopalan, learned senior counsel appearing for Mr.K.Vasu Venkat, learned counsel appearing for the petitioner would submit that in view of the subsequent development viz., allowing of the Criminal Appeal No.628/2003, by the High Court of Andhra Pradesh vide judgment dated 17.12.2009, the respondents are duty bound to reinstate the petitioner forthwith and also to pay back wages and provide him with all attendant and service benefits. It is further submitted that in any event, the respondents should not have accorded sanction to prosecute the petitioner as no materials were available before them and hence sanction was vitiated. The learned senior counsel in support of his submissions, has placed reliance upon the following decisions:
1. (1997) 7 SCC page 622- Mansukhlal Vithaldas Chauhan v. State of Gujarat,
2. (2004) 1 SCC page 121-Union of India and others vs. Jaipal Singh
3. (2007) 1 SCC page 324- Banshi Dhar vs. State of Rajasthan and another
4. (2007) 14 SCC page 766-Food Corporation of India vs. Sudarsandas.
15. In 1997 (7) SCC page 622, it was contended on behalf of the appellan/accused therein that the conviction and sentence recorded by the trial Court and as confirmed by the High Court under Prevention of Corruption Act 1974, is liable to be set aside for the reason that there was no valid sanction within the meaning of Section 6 of the Prevention of Corruption Act, 1974. In paragraph No.17, 18 and 19 it has been held as follows:-
17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. (See Mohd. Iqbal Ahmed v. State of A.P. (1979) 4 SCC 172) Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.
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. (See also Jaswant Singh v. State of Punjab6 and State of Bihar v. P.P. Sharma (1992 Supp (1) SCC 222)
19. Since the validity of sanction depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority not to sanction was taken away and it was compelled to act mechanically to sanction the prosecution.
16. The learned senior counsel appearing for the petitioner would submit that the grant of sanction is not an empty formality and but for the sanction accorded by the competent authority, the petitioner would not have been prosecuted under Prevention of Corruption Act 1988 and that the sanction has been accorded by the competent authority without any application of mind which resulted in the prosecution of the petitioner which ultimately ended in acquittal by virtue of the judgment of the High Court of Andhra Pradesh. Hence the petitioner is entitled to be reinstated forthwith with back wages for the entire period in which he was get out of service and also he shall be provided with all attendant and service benefits.
17. As regards reinstatement with back wages, reliance was placed upon the decision reported in (2004) 1 SCC 121-Union of India and others vs. Jaipal Singh, wherein it has been held that if prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the department itself, perhaps different considerations may arise and on the other hand, if as a citizen, the employee or public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not tobe retained in service. The learned counsel appearing for the petitioner again stressed the point, but for the sanction by the department, he could not have been prosecuted and as such, he is entitled to get full back wages and other benefits on reinstatement.
18. In 2007 (1) SCC page 324-Banshi Dhar vs. State of Rajasthan and another, the payment of back wages on reinstatement pursuant to the order of acquittal came for consideration and it has been held that no hard and fast rule can be laid down in regard to grant of back wages and each case is to be determined on its own facts. The learned senior counsel appearing for the petitioner would contend that the petitioner was dismissed from service on 21.5.2004 and the order of acquittal came to be passed on 17.12.2009 acquitting him honourably and hence, there is no stigma attached and as such he is entitled to be reinstated forthwith with all attendant benefits including back wages.
19. In (2007) 14 SCC page 766-Food Corporation of India vs. Sudarsandas, question of reinstatement after setting aside the conviction and sentence came up for consideration and the Honble Supreme Court of India taking into consideration the factual situation that the respondent/accused therein filed a case after a period of 13 years, has held that the back wages ordered by the High Court is not justifiable and therefore, quashed that part of the order. It has been further held that if the respondent has not been reinstated pursuant to the High Court order, he should be reinstated forthwith and if he has been allowed to join, shall be paid back wages only for the period of pendency of the appeal before the Supreme Court.
20. The learned senior counsel appearing for the petitioner would submit that in the said case, belated claim was made, but in the case on hand, immediately after the order of acquittal dated 17.12.2009, passed by the High Court of Andhra Pradesh, the petitioner by filing reply affidavit, has made a claim of reinstatement with full beak wages and all attendant and service benefits and in terms of the above cited judgment, he should be given full benefit.
21. Per contra, Mr.G.Masilamani, learned senior counsel appearing for the respondents has submitted that immediately after the order of acquittal passed by the High Court of Andhra Pradesh, the petitioner has submitted a representation dated 29.01.2010 to the respondents praying for reinstatement with all attendant and service benefits and decision on the said representation has been deferred in view of the pendency of this writ petition. It is further submitted by the learned senior counsel appearing for the respondents that the question of reinstatement and conferment of all attendant benefits is within the domine of the respondents and the petitioner cannot assume that his request may not be favourably considered by them. It is further submission of the learned senior counsel appearing for the respondents that a writ of mandamus cannot be issued on pre-emptive action and the respondents being a public sector undertaking will act fairly and hence no positive direction may be issued to the respondents by this Court.
22. The Court has carefully considered the submissions made by the respective learned senior counsel appearing for the parties and also perused the materials available on record and also the decisions cited before it.
23. A perusal of the judgment dated 17.12.2009, made in C.A.No.628 of 2003, passed by the High Court of Andhra Pradesh would reveal that the petitioner was honourably acquitted on the ground that there is no legal evidence to show that he received amount towards illegal gratification and that the trial Court has committed an error in placing reliance upon the evidence of an hostile witness. It is pertinent to point out at this juncture the order of acquittal came to be passed on account of absence of legal evidence and not on the ground of validity of sanction.
24. As the offence alleged against the petitioner involved moral turpitude and the materials collected by the investigating agency at the relevant point of time prima facie disclose the commission of the offence, the competent authority of the respondent has accorded sanction and the same cannot be faulted with at this distant point of time. As already stated above the order of acquittal came to be passed only on the ground of lack of legal evidence and not on the ground of improper sanction. Therefore, the submissions made on that ground, lack merit.
25. The petitioner immediately after the order of acquittal, has submitted representation dated 29.1.2010 to the respondents for immediate reinstatement with all attendant and service benefits and the learned senior counsel appearing for the respondents on instructions, would submit that the decision to be taken on the said representation is deferred in view of the pendency of this writ petition and immediately after the disposal of this writ petition, it will be considered on merits and in accordance with law in a fair manner.
26. In the decision reported in 2009(3) MLJ, page 417 (DB)-Oil and Naural Gas Corporation Limited, vs. P.Surya Rao, the respondent therein was dismissed from service and while ordering his reinstatement, certain benefits were denied to him and challenging the legality of the same, a writ petition was filed. The writ petition was allowed wherein direction was given to grant pay and allowances and challenging the vires of the same, ONGC has filed a writ appeal. A Division Bench of this Court has allowed the writ appeal and directed the appellant viz., ONGC to pass orders in terms of Regulation 14 of Pay and Allowances Regulations 1972 and also keeping in mind the principles laid down in the Apex Courts decision in Hindustan Tin Works vs. Its Employees reported in 1979 SC75, 2001 (7) SCC page 231, B.R.Kapoor vs. State of Tamil Nadu: 2001(4) CTC page 219 as well as the order of acquittal passed by the High Court of Andhra Pradesh.
27. As rightly contended by the learned senior counsel appearing for the respondents, this Court cannot say that the respondents are going to act in an unfair manner by denying the request made by the petitioner for reinstatement and conferment of all attendant benefits. This Court has also taken into consideration the submissions made by the learned senior counsel appearing for the respondents on instructions that the respondents will consider the representation submitted by the petitioner in all fairness and pass orders expeditiously. The reinstatement and payment of attendant service benefits to the petitioner is within the domine of the respondents and in the absence of any order rejecting the request made by the petitioner, this Court cannot direct the respondents to reinstate the petitioner forthwith and confer him with all attendant service benefits by issuing a positive direction.
28. In the result, this writ petition is disposed of and the respondents are directed to consider the representation dated 29.1.2010 submitted by the petitioner on merits and in accordance with law and pass orders as expeditiously as possible and not later than six weeks from the date of receipt of copy of this order. The respondents while disposing of the said representation, shall take into consideration, the order of acquittal dated 17.12.2009 made in C.A.No.628 of 2003, passed by the High Court of Andhra Pradesh. In the circumstances, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.
29.10.2010 Index:Yes/No Internet:Yes/No gr.
To
1. The Director, Human Resources, Oil and Natural Gas Corporation Limited, Tel Bhavan, Dehradun-248003.
2. The Chairman & Managing Director, Oil and Natural Gas Corporation Limited, Jeevan Bharati Tower-II, 124, Indira Chowk, New Delhi-110 001.
M.SATHYANARAYANAN, J gr.
PRE DELIVERY ORDER IN W.P.NO.20067 OF 2005 29.10.2010