Andhra Pradesh High Court - Amravati
B.Kalimullah, Kadapa vs Prl Secy, I C Area Devp Ser.Vi Dept, Hyd ... on 26 February, 2020
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.16176 of 2014
ORDER :
This writ petition is filed seeking the following relief:
"To issue an appropriate writ, order or direction more particularly one in the nature of Mandamus declaring impugned G.O.Ms.No.30 Irrigation & Command Area Development (IW: Services VI 1) Department, dated 29.05.2014 issued by the 1st respondent ordering for prosecution of the petitioner without reference to earlier Memo No.9766/Ser. VI/A1/2010-15, dated 07.12.2013 which was ordered for departmental enquiry only on the charges leveled by the 2nd respondent ACB instead of prosecution as being illegal, arbitrary and in violation of principles of natural justice and Articles 14 and 21 of Constitution of India and consequently set aside the aforesaid impugned G.O. ordering for prosecution of the petitioner..."
This Court has heard Sri K.Rathangapani Reddy, learned counsel for the petitioner, learned Government Pleader for Irrigation for respondent No.1 and the standing counsel for the Anti Corruption Bureau appearing for respondent No.2.
Learned counsel for the petitioner argued the matter and pointed out that the petitioner is accused of possessing disproportionate assets which are contrary to his known 2 sources of income. Learned counsel for the petitioner points out that the figures assessed by the 2nd respondent are that he is possessed of income, which is disproportionate to a tune of Rs.73.09 lakhs. Learned counsel argued that the amount claimed to be disproportionate asset is not essentially correct and if the sources of the revenue of the petitioner are seen, there are no disproportionate assets at all. He submits that there is no case in this regard. However, he points out that the crux of the issue in this matter is that on 07.12.2013, the Principal Secretary to the Government held that the prosecution of the petitioner is not viable and therefore, he directed to conduct a disciplinary enquiry. To the surprise of the petitioner, learned counsel submits that on 29.05.2014, G.O.Ms.No.30 was passed by which prosecution was recommended against the petitioner under the provisions of the Prevention of Corruption Act, 1988 (for short 'the Act'). Learned counsel for the petitioner vehemently argues that both the orders are passed upon the same material which has already been collected. He submits that for granting sanction under section 19 of the Act, the respondent did not have any material to come to a conclusion that prosecution should be commenced. He points out that a reading of the sanction for prosecution dated 29.05.2014 does not reveal any new matter/material was found. He also argues that the G.O dated 29.05.2014 does not refer to the earlier memo dated 07.12.2013 by which departmental proceedings were 3 recommended. Relying upon the following case law in State of Himachal Pradesh v. Nishant Sareen1 and State of Punjab v. Mohammed Iqbal Bhatti2, learned counsel argues that only if fresh material has been discovered and collected subsequent to an earlier order, the subsequent order of the prosecution can be given. Learned counsel vehemently argues that the subsequent order does not refer to any new material that has been collected which would entitle the respondents to pass any order. Hence, he prays for an order.
In reply to this, learned standing counsel for Anti Corruption Bureau argued at length. Relying upon the counter affidavit that is filed and the case law that he relies upon, he states that the earlier memo dated 07.12.2013 is bereft of reasons. He states that there is no application of mind in the first memo. He points out that there is no prohibition under law for re-examining the matter and for granting of permission for prosecution. Learned standing counsel relies upon case law in K.Rama Krishna Raju v. Government of Andhra Pradesh3 to justify his submission that a permission order referred to the Tribunal for disciplinary proceedings will not preclude the State from launching prosecution. Apart from that he argues in this case that a statement is also made that the rules of natural justice were not followed. Relying upon Superintendent of 1 (2010) 14 SCC 527 2 (2009) 17 SCC 92 3 2012 (2) ALD 425 4 Police (C.B.I) v. Deepak Chowdhary4, Subramanian Swamy v. Manmohan Singh5 and K.Srinivasulu v. Government of Andhra Pradesh6, learned standing counsel for the Anti Corruption Bureau argues that the action taken by the State is correct and that the permission to prosecute has been given by passing the impugned G.O. after considering the case on its own merits.
The learned Government Pleader for Irrigation appears and also argued the case. Relying upon State of Maharashtra through Central Bureau of Investigation v. Mahesh G.Jain7 and K.Srinivasulu v. The Government of A.P. rep. by its Prl. Secretary, Home (SC.A)8, learned Government Pleader argues that unless and until the first order of referring the matter to disciplinary proceedings makes a mention that the sanction for prosecution is "refused", he states that the subsequent order is not vitiated. Therefore, it is his contention that only if the first order, by which the proceedings are referred to the TDP, contained an express stipulation that the sanction is refused, the subsequent order is permissible.
This Court, after listening all the counsel, notices that the first order dated 07.12.2013 is as follows:
4 (1995) 6 SCC 225 5 (2012) 3 SCC 64 6 2010 (3) ALD 452 7 (2013) 8 SCC 119 8 (2010) 3 ALD 452 5 "The attention of the Director General, Anti-Corruption Bureau, Hyderabad is invited to the reference cited, wherein he has recommended for prosecuting the Accused Officer Sri B.Kalimullah, Deputy Executive Engineer in a competent Court of Law under Sections 13 (2) read with 13 (1) (e) of Prevention of Corruption Act, 1988.
After careful examination of the matter, and after duly considering the totality of the facts and circumstances of the matter, it has been decided to conduct a Departmental Enquiry into the charges instead of Prosecution.
The Director General, Anti-
Corruption Bureau, Hyderabad is,
therefore, requested to furnish the draft Articles of Charges on the allegation of acquisition of disproportionate assets against Sri B.Kalimullah, formerly Deputy Executive Engineer, H.L.C. Localization Sub-Division, Garladinne, Anantapur District urgently for initiating departmental action against Sri B.Kalimullah, Deputy Executive Engineer in disproportionate assets case."
Whereas, the next order which is part and parcel of G.O.Ms.No.40, clearly talks of the consideration of the material, including the FIR, copies of statements of witnesses documents etc., before according sanction.
One of the major submissions made by the petitioner is that the rules of natural justice were not followed. Learned counsel for ACB clearly relied upon clear case law which is to 6 the effect that there is no need to grant a prior opportunity to the delinquent before permitting the sanction. Apart from this, both the standing counsel for the ACB and the Government Pleader relied upon a Division Bench judgment of the A.P. High Court in K.Srinivasulu (8 supra). This case, in the opinion of this Court, squarely applies to the facts and circumstances in this case. In the case also, there was a G.O. issued which directed the initiation of departmental enquiry. Learned counsel in that case argued that once the Government directs the initiation of the departmental proceedings, it must be inferred that the sanction to prosecute is rejected. However, the Division Bench refused to consider its submission. The memo and the G.O. in that case did not state explicitly that the sanction of prosecution of respondent No.4 was refused. Since the G.O. and the memo did not state that the sanction to prosecute was refused, the Court set aside the same and directed the State to take fresh look at the request for sanction under the provisions of the Act. If the present case is examined against the backdrop of this Division Bench judgment, it is clear that in the initial G.O. relied upon by the learned counsel for the petitioner, dated 07.12.2013, it is clear that there is no express statement that the permission for prosecution under the Act is negatived. It merely states that the Secretary to the Government merely decided to conduct a disciplinary enquiry. Even in K.Rama Krishna Raju (3 supra), the learned single 7 Judge held that in the order for sanction for prosecution, it should be clearly mentioned that the permission for prosecution is accorded or refused. Learned single Judge held that the mere fact that the petitioner's case has been referred to the Tribunal, does not lead to a conclusion that the State has decided not to accord permission under section 19 of the Act. Lastly, the judgment cited by the learned Government Pleader in State of Maharashtra through Central Bureau of Investigation (7 supra), also applies to the facts and circumstances of this case. It is stated clearly that sanction for prosecution is a matter which can be disproved during the course of the trial also. The Hon'ble Supreme Court held that the adequacy of the material should not be examined by the Court nor should Court adopt a hyper technical attitude to determine the validity of the sanction order.
This Court after hearing all the learned counsel and considering the material is of the opinion that the judgment of the learned single Judge in K.Rama Krishna Raju (3 supra) and of the Division Bench in Sri Bhavana Rishi Co-op. House Building Society, R.R.District v. Information Commission, Hyderabad9 would squarely apply. In the Division Bench judgment as mentioned above, after holding that the memos are not correctly issued, an opportunity was 9 2010 (3) ALD 465 8 given to the State to complete the exercise of sanction for prosecution within three months.
In view of these judgments, this Court is of the opinion that the mere fact that the memo was issued earlier recommending disciplinary action cannot lead to an inescapable conclusion that the sanction of prosecution cannot be granted later. Even if there is no sufficient material firstly, the law permits the State to look into the issue of granting of permission.
For all these reasons, this Court holds that there are no merits in the writ petition. Accordingly, the same is dismissed. No order as to costs.
As a sequel, the miscellaneous petitions if any shall stand dismissed.
________________________ D.V.S.S.SOMAYAJULU,J Date : 26.02.2020 KLP